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Court of AppealPartially AllowedNotice of Motion dated 9th October 2025 in the pending appeal from Malindi High Court Constitutional Petition No. E006 of 2024

Republic v Coco & 9 others (Civil Appeal (Application) E029 of 2025) [2025] KECA 1940 (KLR)

Court of Appeal of Kenya
21 November 2025
4,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed the DPP to fix the appellant's name on appeal, confirming appeals aren't lost to simple naming mistakes.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa, delivered by Ngenye-Macharia, JA sitting as a single judge, on a Notice of Motion dated 9th October 2025 by the applicant (Republic, intended to be substituted with the Director of Public Prosecutions). The applicant sought leave to amend its Memorandum of Appeal in a pending appeal against the ruling of the High Court at Malindi (Thande, J.) in Constitutional Petition No. E006 of 2024, to correct a typographical error in the Kilifi criminal case number and to substitute the name of the appellant from 'Republic' to 'Director of Public Prosecutions', the DPP having filed the Notice of Appeal dated 28th April 2025. The 1st to 3rd respondents opposed, contending that the Republic was not a party to the proceedings below, that the appeal filed in the wrong name was incompetent and could not be cured by amendment, and that the court lacked jurisdiction given a pending application to strike out the Record of Appeal as filed out of time. The 4th to 8th respondents supported the application. The single judge held that a Memorandum of Appeal is not a primary document and is amenable to amendment subject to the interests of justice, that the misnaming of the appellant was an oversight brought within reasonable time, and that no prejudice would be occasioned, guided by Article 159(2)(d) and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. The application was allowed, leave to amend granted, the draft amended Memorandum deemed duly filed, service ordered within 7 days, and costs made costs in the appeal. The striking-out application remains for the full bench.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court (sitting as a single judge) has jurisdiction to allow amendment of a Memorandum of Appeal, including substitution of the appellant's name from 'Republic' to 'Director of Public Prosecutions'
  2. 2.Whether the proposed amendments should be allowed in the exercise of judicial discretion

Key legal issues

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01

Whether a Memorandum of Appeal is amenable to amendment

Holding

Yes; it is not a primary document listed under Rule 64(2) and cannot be introduced by supplementary record, so it is amendable subject to the interests of justice.

Reasoning

The court relied on Uhuru Highway Development Ltd v Central Bank of Kenya, noting that primary documents listed under Rule 85(1)(a)-(k) (now Rule 64(2)) cannot be amended, but a Memorandum of Appeal is not among them. It therefore does not enjoy the immunity of primary documents and may be amended where justice so requires, as repeatedly ruled by the Court.

p. 6
02

Whether substitution of 'Republic' with 'DPP' as appellant should be allowed

Holding

Yes; the error was an oversight/typographical error, the application was brought within reasonable time, and no prejudice would be suffered by any party.

Reasoning

The court found it undisputed that the DPP filed the Notice of Appeal and thus 'owns' the appeal, while the Republic's name was inserted by mistake. Guided by Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, the court held that no new substantive grounds were introduced and that the amendment serves substantive justice by ensuring uniformity in referencing the parties, without prejudice to respondents.

p. 7
03

Whether the pending application to strike out the Record of Appeal deprived the court of jurisdiction to hear this application

Holding

No; the striking-out application remains for determination in another forum and does not derail determination of the amendment application by a single judge.

Reasoning

The 1st - 3rd respondents argued that since the Record of Appeal was filed out of time and the Notice of Appeal deemed withdrawn under Rule 85(1), the court lacked jurisdiction even to hear the amendment application. The court declined to determine that question at this stage, holding that the striking-out application was directed to be heard alongside the main appeal and that disposing of the amendment application expeditiously clears the way for both.

p. 7

Legal principles established

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  • A Memorandum of Appeal is not a primary document in a record of appeal and is amenable to amendment, subject to the interests of justice
  • The power to amend documents under the Court of Appeal Rules is discretionary and must be exercised judiciously, driven by substantive justice and the absence of prejudice
  • An applicant for amendment must show good faith and that the application was brought without undue delay

Court orders

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  1. 1.The Applicant be and is hereby granted leave to amend the Memorandum of Appeal dated 12th May 2025
  2. 2.The applicant's draft Memorandum of Appeal dated 9th October 2025 be and is hereby deemed as duly amended
  3. 3.The applicant do serve the draft Amended Memorandum of Appeal within 7 days from the date of the ruling
  4. 4.Costs shall be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
Constitutional Petition No. E006 of 2024 - Daniel Lo Coco & 2 Others vs. Director of Public Prosecutions & 10 Others
Jurisdiction invoked
Rule 46(1) and (2) of the Court of Appeal Rules, 2022; Sections 3A and 3B of the Appellate Jurisdiction Act (single judge exercise of discretion)

Relief refused

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Leave to correct the criminal case number (Kilifi Criminal Case No. E384 of 2024 to E328 of 2024)

Not refused on the merits; counsel for the 1st - 3rd respondents conceded the amendment, so the court did not need to determine it

p. 5

Costs

Costs shall be in the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Applicant be and is hereby granted leave to amend the Memorandum of Appeal dated 12th May 2025;
p. 8Final orders - leave to amend granted
That costs shall be in the appeal.
p. 8Final orders - costs
a memorandum of appeal, subject to the interests of justice, is always amenable to amendment.
p. 6Amenability of a Memorandum of Appeal to amendment
A court in granting amendment must be driven by doing substantive justice and serving the interests of all parties.
p. 6Principles governing amendment
Article 159 (2) (d) of the Constitution requires that courts to administer justice without undue regard to technicalities and formalities.
p. 7Overriding constitutional principle against technicalities

Issues in the judgment

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minor

The judgment internally refers inconsistently to the case number correction, at one point stating the correct citation is E328 but then saying the Memorandum referred to 'Criminal Case No. 384 of 2024 instead of Criminal Case No. 328 of 2024' while paragraph 19 states the amendment is 'instead of Kilifi Criminal Case Number E384 of 2O24' (with typographical '2O24').

minor

The replying affidavit of the 2nd respondent is described as sworn on 24th October 2024, which predates the application dated 9th October 2025 it opposes.

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, "Republic v Coco & 9 others (Civil Appeal (Application) E029 of 2025) [2025] KECA 1940 (KLR)", Case Analysis (2025). Notice of Motion dated 9th October 2025 in the pending appeal from Malindi High Court Constitutional Petition No. E006 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1940/eng@2025-11-21

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