Nganga & 4 others v Kabue & 3 others
The bottom line
#Kenya's Court of Appeal allowed family members to amend their inheritance appeal late, confirming that amendments are freely permitted when no injustice results.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to amend a memorandum of appeal
Rule 46 vests the Court with discretion to allow amendments where the interests of justice so demand; the memorandum is amendable at any stage.
Relying on Uhuru Highway Development Ltd v Central Bank of Kenya, as reaffirmed in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, the court held the memorandum of appeal is not part of the primary record and may be amended at any stage in the interests of justice. The respondents' objection that the new prayers fall within the ELC's exclusive jurisdiction was met with In Re Estate of Mbogo Muthage, holding a Succession Court clothed with jurisdiction to cancel title where circumstances warrant.
Late amendment and prejudice
Delay is not fatal where the amendment can be made without injustice; corresponding leave to the respondents cures any prejudice.
Applying JC Patel v BD Joshi, the court held that however negligent or late an amendment may be, it should be allowed absent injustice, with inconvenience compensated by costs. Noting the applicants were unrepresented before the High Court and only instructed counsel at the stay/appeal stage, the court found no substantial prejudice since respondents would have corresponding leave to file supplementary submissions in response.
Admission of additional material and submissions on appeal
By parity of reasoning with Donald Oyatsi, additional material may be admitted despite lack of cross-examination where necessary to do justice.
The respondents argued they would be deprived of the opportunity to rebut additional evidence through cross-examination. The court applied Mohammed Abdi Mahamud's guiding principles and this Court's decision in Donald Oyatsi v The Disciplinary & Ethics Committee, which allowed admission of additional documents absent cross-examination where the court must bring on board all material necessary to do justice, and allowed the motion.
Legal principles established
#- A memorandum of appeal is not part of the primary record of appeal and is amendable in the interests of justice at any stage.
- An amendment, however late or negligent, should be allowed if it can be made without injustice to the other party, with inconvenience compensated by costs.
- An appellate court may admit additional material notwithstanding the absence of cross-examination where necessary to do justice between the parties.
Court orders
#- 1.Leave granted to amend the memorandum of appeal dated 6th May 2022
- 2.Proposed amended memorandum of appeal deemed duly filed and served
- 3.Leave granted to file supplementary submissions incorporating jurisprudence emerging since 6th May 2022
- 4.Corresponding leave granted to the respondents to file supplementary submissions
- 5.Supporting affidavit and previously filed documents deemed part of a supplementary record of appeal
- 6.Any replying affidavit filed by the respondents deemed part of the supplementary record of appeal
- 7.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court at Nairobi
- HC Succession Cause No. 634 of 2003
- Jurisdiction invoked
- Rules 44, 46 and 106 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga & 4 others v Kabue & 3 others", Case Analysis (2025). Civil Appeal (Application) E277 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2318/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.