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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2025] KECA 2117 (KLR)

Moses Mwaura Kagwi & 2 others v Jesse Catherine Kathii Matu & 1 other

Court of Appeal of Kenya
28 November 2025
478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed advocates to correct wrongly named parties in a pending appeal, confirming that honest amendments before hearing are freely allowed.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nyeri delivered by S. ole Kantai, JA, on 28 November 2025. The applicants, advocates for Virginia Wakathaiya Njuki and Jessie Catherine Kathii Matu, moved under rules 35 and 44(2) of the Court of Appeal Rules for leave to amend the case citation and/or heading of a pending appeal. They explained that the record of appeal, filed on 23 October 2017, erroneously named Moses Mwaura Kagwi and Japhat Njue Mwaura as appellants and Isaac Ngari Murimi as a petitioner, whereas the ruling appealed against had been in their favour; the true appellants were Virginia Wakathaiya Njuki and Jessie Catherine Kathii Matu, currently listed as respondents. The error was attributed to the applicants' own inadvertence and was said to have been noted only recently. The respondents, through their advocate Joe Kathungu, opposed the application as bad in law, frivolous, an afterthought and an abuse of process, arguing it came too late since directions had been taken and submissions filed, and that it would occasion prejudice. The court observed that counsel did not specify the prejudice claimed. Holding that leave to amend should ordinarily be freely given where an appeal has not been heard and the appeal remained pending, the judge allowed the Motion, directed the applicants to lodge the appropriate document within ten days, and ordered costs of the application to be in the appeal.

Key legal issues

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01

Whether leave to amend the citation/heading of a record of appeal should be granted before hearing of the appeal.

Holding

Leave to amend should ordinarily be freely given where the appeal is pending and no judgment has been delivered; correcting the naming of parties causes no prejudice.

Reasoning

The court reasoned that the appeal was still pending awaiting hearing, so an amendment correcting the placement of parties as appellants and respondents would not prejudice anyone. On the contrary, it would properly name the parties and avoid confusion at the hearing. The respondent asserted prejudice but counsel did not specify what prejudice would be suffered, an omission the court noted and treated as undermining the opposition.

p. 2

Legal principles established

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  • Leave to amend a document should ordinarily be freely granted, particularly where the appeal has not yet been heard or judgment given.

Court orders

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  1. 1.The Motion for leave to amend the case citation and/or heading of the appeal is allowed.
  2. 2.The applicants to lodge the appropriate document within ten (10) days of the ruling.
  3. 3.Costs of the application to be in the appeal.
On appeal from
Not stated in the judgment
Not stated in the judgment
Jurisdiction invoked
Rules 35 and 44(2) of the Court of Appeal Rules

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, "Moses Mwaura Kagwi & 2 others v Jesse Catherine Kathii Matu & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2117/eng@2025-11-28

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