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Court of AppealDismissedNot stated in the judgment· [2025] KECA 1106 (KLR)

Joseph Lekamario & 248 Others v African Wildlife Foundation & 1 other

Court of Appeal of Kenya
5 June 2025
WKW. KaranjaJMJamila MohammedAMA.O. Muchelule
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let a land appellant add a historical-injustice claim on appeal because it was never raised in the original trial.

What this practically means

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Executive summary

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This was an application by the appellant, Mr. Lempaa Suiyanka, seeking leave to amend ground No. 7 of his memorandum of appeal to add a complaint that the trial Judge failed to consider the principle of security of land rights when addressing historical injustices. The application, though headed under Rule 31 of the Court of Appeal Rules (which governs further evidence), was in substance an amendment application; the court acknowledged the mix-up caused delay but elected to determine the matter on merit rather than strike it out. The respondents opposed, arguing the amendment would introduce a fresh cause of action - historical injustices and communal/ancestral land claims - never pleaded at trial, where the claim was purely one of adverse possession by specific complainants, and would prejudice non-parties including Ol-Pajeta Ranching Limited, the registered owner, and the National Land Commission. Applying Securicor v EA Drapers and Kenya Commercial Bank v Osebe, the court held that a new point on appeal must arise from issues sufficiently pleaded and canvassed at trial, must be consistent with the case as conducted below, and must not require further evidence. Finding the intended amendment introduced a totally different cause of action and would condemn unheard parties, the bench dismissed the application with costs to abide the appeal. The decision binds lower courts on the limited scope for amending memoranda of appeal.

Key legal issues

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01

Whether an amendment to a memorandum of appeal introducing historical land injustices is permissible

Holding

The amendment was refused because it introduced a new cause of action never pleaded or litigated at trial and would affect non-parties such as the registered owner and the National Land Commission

Reasoning

The court applied the established guidelines from Securicor and KCB v Osebe: a new point on appeal must be consistent with the case as conducted at trial, must not raise disputes of fact, and must not require further evidence. A claim of historical injustices had to be separately and distinctly pleaded and responded to, and would condemn parties unheard, amounting to a travesty of justice.

p. 3
02

Effect of the mixed-up and omnibus nature of the application

Holding

Although the application conflated Rule 31 (further evidence) with amendment of a memorandum of appeal and could have been struck out on that basis alone, the court elected to determine it on merit given the age of the appeal

Reasoning

The court noted the confusion between the rule invoked and the prayer sought had caused misplacement and delay. Rather than striking out the defective application, the bench chose to decide it on its merits in view of accusations of intentional delay, and ultimately found it lacked merit.

p. 2

Legal principles established

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  • A new point on appeal must arise from issues sufficiently pleaded, canvassed or succinctly made issues at the trial; a fresh cause of action cannot be introduced at appeal level
  • The Court of Appeal is not a trial court and cannot canvass a fresh claim requiring further evidence

Court orders

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  1. 1.The application for leave to amend the memorandum of appeal is dismissed
  2. 2.Costs will abide the appeal
On appeal from
High Court (trial court inferred)
Jurisdiction invoked
Rule 31 of the Court of Appeal Rules was cited on the face of the application, though the court noted the application was in substance one for amendment of a memorandum of appeal, a single Judge application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Lekamario & 248 Others v African Wildlife Foundation & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1106/eng@2025-06-05

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