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Court of AppealAllowedNot stated in the judgment· [2026] KECA 429 (KLR)

Metian v Moile (Civil Appeal (Application) E863 of 2024) [2026] KECA 429 (KLR)

Court of Appeal of Kenya
6 March 2026
LNL.M. Ndolo
563 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed appellants can amend their memoranda of appeal with the court's permission, provided the changes clarify the case and harm no one.

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 Nairobi, delivered by L.M. Ndolo, JA on 6th March 2026, in which the appellant sought leave to amend his memorandum of appeal dated 7th October 2024 to include prayers and grounds inadvertently excluded from the original document. The application was supported by the appellant's affidavit and opposed by the respondent, who conceded that the Court has discretion under rule 46 of its Rules to allow amendment but urged that the discretion be exercised so as not to prejudice the adverse party. The court reiterated its settled position that a memorandum of appeal is amenable to amendment upon a proper exercise of the rule 46 discretion, and that the power is discretionary and must be exercised judiciously, granting leave only where it is in the interest of justice, taking into account the nature and extent of the amendment and whether it will assist the just determination of the real questions in dispute. Examining the proposed amendments, the judge found that they were necessary to clarify the appeal, flowed directly from the proceedings and evidence in the superior court without presenting a new case, and would cause no prejudice to the respondent, who would retain an opportunity to be heard in opposition to the appeal. The application was accordingly allowed, the annexed amended memorandum of appeal was admitted as duly filed subject to payment of applicable court fees, and the costs of the application were ordered to be in the appeal.

Key legal issues

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01

Whether leave to amend a memorandum of appeal should be granted under rule 46 of the Court of Appeal Rules

Holding

The discretion under rule 46 was exercised in favour of the applicant because the amendments were necessary for clarifying the appeal, flowed directly from the superior court proceedings, and occasioned no prejudice to the respondent.

Reasoning

The court applied its own precedents holding that the power to amend is discretionary and must be exercised judiciously in the interest of justice. The court examined the proposed amendments and found they clarify the appeal and arise from evidence and findings in the superior court, presenting no new case. The respondent retains an opportunity to be heard, so no prejudice results. Leave was granted subject to payment of applicable court fees.

p. 2

Legal principles established

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  • A memorandum of appeal before the Court of Appeal is amenable to amendment pursuant to a proper exercise of the Court's discretion under rule 46, exercised judiciously in the interest of justice and without prejudice to the adverse party.

Court orders

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  1. 1.The application for leave to amend the memorandum of appeal is allowed
  2. 2.The annexed amended memorandum of appeal is admitted as duly filed, subject to payment of applicable court fees
  3. 3.Costs of the application are in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 46

Cases cited (2)

  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] KECA 692 (KLR)
  • Lillian Wanja Muthoni Mbogo t/a Sahara Consultants & 5 Others v Assets Recovery Agency
    [2022] KECA 48 (KLR)
Jurisdiction invoked
Rule 46 of the Court of Appeal Rules (discretion to allow amendment of documents filed before the Court)

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, "Metian v Moile (Civil Appeal (Application) E863 of 2024) [2026] KECA 429 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/429/eng@2026-03-06

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