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Court of AppealAllowedCivil Appeal (Application) E024 of 2024· [2024] KECA 1957 (KLR)

Livoi v Macnaughton Limited

Court of Appeal
20 December 2024
MNMumbi Ngugi
1,862 words in judgment
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The bottom line

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Kenya's Court of Appeal let a self-represented appellant fix two appeal filing mistakes, showing courts prioritise justice over strict procedural rules.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (Mumbi Ngugi, JA) on an application by Clifford Otwere Livoi, acting in person, under rules 4, 44 and 88 of the Court of Appeal Rules. The applicant sought extension of time to file and serve a supplementary record of appeal and leave to amend his memorandum of appeal, both of which were defective: the record of appeal omitted the certified copy of the trial court's decree, and the memorandum of appeal omitted the reliefs sought from the Court. The respondent opposed, arguing the application was brought only after the respondent filed its submissions and was intended to patch gaps in the applicant's case. The court identified two issues: whether to extend time for the supplementary record, and whether to allow amendment of the memorandum. On the first, it noted the requirements of rule 89(1)(h) and the fifteen-day window in rule 90, but observed an apparent conflict with rule 94(3), which permits an appellant to lodge a supplementary record 'At Any Time'. Holding that the reading consistent with the ends of justice favours allowing the supplementary record, and citing Surestep Systems, the court granted leave. On the second issue, applying Kenya Hotels and Lilian Wanja Muthoni Mbogo, it held the amendment power is discretionary and to be exercised judiciously; given the applicant's status as a pro se litigant, the interests of justice favoured granting leave despite the absence of a draft amended memorandum. The application was allowed with thirty days to file and serve, and no order as to costs. This is an interlocutory ruling; it does not disturb any decision below.

Key legal issues

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01

Filing of a supplementary record of appeal to include an omitted decree

Holding

Leave granted; the rules should be read in a manner consistent with the ends of justice, particularly for a pro se litigant

Reasoning

Rule 89(1)(h) requires the record of appeal to contain the certified decree. The appellant omitted it and did not use rule 90's fifteen-day window. The court noted tension between rule 90 and rule 94(3), and held that the reading consistent with the ends of justice favours allowing the supplementary record, citing Surestep Systems and Solutions Limited v Ataka, Kimori & Okoth Advocates.

p. 2
02

Amendment of the memorandum of appeal to include omitted reliefs

Holding

Leave granted; the amendment would assist the just determination of the appeal and the applicant is a layman acting in person

Reasoning

The memorandum of appeal omitted the reliefs sought, discovered only upon reading the respondent's submissions. Although no draft amended memorandum was exhibited, the court held that the interests of justice, taking account of the applicant's status as a self-acting litigant, required the discretion to be exercised in his favour.

p. 4

Legal principles established

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  • A reading of rules 90 and 94(3) of the Court of Appeal Rules consistent with the ends of justice favours allowing an appellant to file a supplementary record of appeal to include an omitted decree
  • The power to allow amendment of a document under rule 44 is discretionary and must be exercised judiciously in the interest of justice

Court orders

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  1. 1.Application dated 29th August 2024 allowed as merited
  2. 2.Leave granted to file a supplementary record of appeal to include a certified copy of the decree from the judgment appealed against
  3. 3.Leave granted to amend the memorandum of appeal to include the reliefs sought from the Court
  4. 4.Supplementary record of appeal and amended memorandum of appeal to be filed and served within thirty (30) days
  5. 5.No order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 44
  • Court of Appeal Rulesrule 88
  • Court of Appeal Rulesrule 89(1)(h)
  • Court of Appeal Rulesrule 90
  • Court of Appeal Rulesrule 94(1)
  • Court of Appeal Rulesrule 94(3)
  • Court of Appeal Rules (2022)rule 46

Cases cited (3)

  • Surestep Systems and Solutions Limited v Ataka, Kimori & Okoth Advocates
    [2021] KECA 953 (KLR)

    Supports the reading of the rules consistent with the ends of justice favouring filing of a supplementary record of appeal

  • Kenya Hotels Limited vs Oriental Commercial Bank Limited
    [2018] eKLR

    A memorandum of appeal is amenable to amendment; rule 44 power is discretionary and to be exercised judiciously

  • Lilian Wanja Muthoni Mbogo t/a Sahara Consultants & 5 others v Assets Recovery Agency
    (Civil Appeal (Application) E221 of 2020) [2022] KECA 48 (KLR)

    Power to amend under rule 44 is discretionary; court must consider nature and extent of amendment and good faith

Jurisdiction invoked
Rules 4, 44 and 88 of the Court of Appeal Rules (application for extension of time and leave to amend)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Livoi v Macnaughton Limited", Case Analysis (2024). Civil Appeal (Application) E024 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1957/eng@2024-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.