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Court of AppealPartially AllowedApplication dated 21st November, 2025 in the appeal from Nairobi ELC No. 108 of 2013 (Court of Appeal application number not stated in the ruling)

Mbugua v Njenga & another (Civil Appeal (Application) E865 of 2025) [2026] KECA 1527 (KLR)

Court of Appeal of Kenya
31 July 2026
1,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a litigant to fix a year typo in his appeal papers, choosing 2020 — the date court records show — over 2025.

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 (Lesiit, JA) delivered on 31 July 2026. George K. N. Mbugua, appellant in an intended appeal against the ruling of the Environment and Land Court at Nairobi (Kemei, J.) of 29 May 2025 in ELC No. 108 of 2013, applied on 21 November 2025 under rule 46(a) of the Court of Appeal Rules, 2022 for leave to amend paragraph 5 of his memorandum of appeal dated 16 October 2025 to correct a typographical error in a year. The motion and supporting affidavit described the correction as from '202' to '2025', but the annexed amended memorandum proposed '2020'; the judge verified from the trial court's proceedings of 2 December 2019 that the hearing had been adjourned by Eboso, J. to 25 May 2020. Relying on Kanwar Sarjit Singh Dhiman v Keshvji Jivraj Shah, which approved Uhuru Highway Development Ltd v Central Bank of Kenya, the court held that a memorandum of appeal is not a primary document but the creation of the appealing party and is amenable to amendment subject to the interest of justice, and that the discretion must not be exercised on whim or caprice. The error being typographical, not altering the substance of the appeal, and occasioning no prejudice, the application was allowed: the amendment to follow the annexed memorandum (2020), filing within 21 days, service within 14 days of filing, and no orders as to costs. The respondents filed no response; the 1st respondent's submissions addressed the memorandum of appeal, not the application. This ruling decides only the amendment; the appeal itself remains pending.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave, under rule 46 of the Court of Appeal Rules, 2022, to amend paragraph 5 of the memorandum of appeal dated 16th October, 2025 to correct a typographical error.
  2. 2.Whether the proposed amendment alters the substance of the appeal or occasions prejudice to the respondents.
  3. 3.Whether the corrected year to be inserted is 2025, as stated on the face of the motion and in the affidavit in support, or 2020, as set out in the annexed amended memorandum of appeal.

Key legal issues

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01

Whether leave may be granted under rule 46 of the Court of Appeal Rules, 2022 to amend a memorandum of appeal.

Holding

Yes. Rule 46 governs applications for leave to amend a document, and the memorandum of appeal is such a document. The power is discretionary but must be exercised for reason, not whim or caprice; the memorandum, being the creation of the appealing party rather than a primary document, is always amenable to amendment subject to the interest of justice.

Reasoning

The court identified rule 46 as the source of the power to amend a document and the memorandum of appeal as such a document. Adopting Kanwar Sarjit Singh Dhiman v Keshvji Jivraj Shah, which approved Uhuru Highway Development Ltd v Central Bank of Kenya, it characterised the memorandum of appeal as a creation of the appealing party, always amenable to amendment subject to the interest of justice. The discretion, though broad, is not to be exercised on whim or caprice and must be backed by reason.

p. 2
02

Whether the proposed correction of the year in paragraph 5 alters the substance of the appeal or prejudices the respondents.

Holding

No. The error is typographical in nature and does not alter the substance of the appeal; no prejudice will be occasioned to the respondents if the amendment is allowed.

Reasoning

The amendment sought was confined to correcting the year in paragraph 5 — the date to which the hearing was adjourned on 2nd December, 2019. The court treated this as a typographical slip going to form, not substance, and found no harm in granting the orders. It expressly found, further, that the respondents would suffer no prejudice, completing the classical justification for allowing an amendment: an error not altering substance, coupled with absence of prejudice to the other side.

p. 3
03

Whether the corrected year to be inserted is 2025, as stated on the face of the motion and affidavit, or 2020, as set out in the annexed amended memorandum.

Holding

2020. The amendment will be made in accordance with the annexed amended memorandum of appeal, which the court verified against the trial court's own proceedings.

Reasoning

A discrepancy emerged within the applicant's own papers: the motion and supporting affidavit proposed correcting '202' to read '2025', while the annexed draft memorandum proposed '2020'. The judge perused the trial court's proceedings of 2nd December, 2019 and confirmed that Eboso, J. had adjourned the hearing to 25th May, 2020, not 2025. The operative amendment therefore follows the annexed amended memorandum, notwithstanding the contrary year asserted in the motion and affidavit.

p. 3

Legal principles established

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  • A memorandum of appeal is not a primary document but a creation of the party appealing and, subject to the interest of justice, is amenable to amendment with leave.
  • The discretion to grant leave to amend a memorandum of appeal must be exercised on reasoned grounds, not on whim or caprice.
  • A typographical error in a memorandum of appeal that does not alter the substance of the appeal may be corrected on leave where no prejudice is occasioned to the respondents.

Court orders

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  1. 1.The application dated 21st November, 2025 is found to be merited and is allowed.
  2. 2.The amendment is to be made in accordance with the annexed amended memorandum of appeal, inserting the year 2020 (and not 2025) in paragraph 5.
  3. 3.The applicant shall file the amended memorandum of appeal within twenty-one (21) days of the date of the ruling.
  4. 4.The applicant shall serve the respondent within fourteen (14) days of the date of filing of the amended memorandum of appeal.
  5. 5.There shall be no orders as to costs.

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court at Nairobi
ELC No. 108 of 2013
Jurisdiction invoked
Rule 46(a) of the Court of Appeal Rules, 2022 (application for leave to amend a document, being the memorandum of appeal)

Relief refused

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Correction of paragraph 5 of the memorandum of appeal so that the year reads 2025, as stated on the face of the motion and in the supporting affidavit.

Leave to amend was granted, but not on the terms stated on the face of the motion: the annexed amended memorandum proposed the year 2020, and the court verified from the trial court's proceedings of 2nd December, 2019 that the hearing was adjourned to 25th May, 2020 and not 2025. The operative amendment therefore follows the annexed draft (2020), not the year asserted in the motion and affidavit.

p. 3

Costs

There shall be no orders as to costs.

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.

memorandum of appeal is not a primary document but a creation of the party appealing hence, subject to the interest of justice, is always amenable to amendments.
p. 2Amenability of a memorandum of appeal to amendment
the said unfettered discretion is not to be based on whim or caprice and that I should be backed up by reason
p. 2Judicial discretion in granting leave to amend
the error involved is typographical in nature and does not alter the substance of the appeal, I find there will be no harm in granting the orders as sought.
p. 3Typographical amendment not altering the substance of the appeal
I went further to peruse the proceedings of the trial court of 2nd December, 2019 and confirmed that the hearing of the applicant’s matter was adjourned to 25th May, 2020 and not the year 2025.
p. 3Corrected year inserted: 2020, not 2025
The applicant shall file the amended memorandum of appeal within twenty one days of date of this ruling, and serve the respondent within 14 days of the date of filing of the amended memorandum of appeal
p. 3Final orders - timelines for filing and service
There shall be no orders as to costs.
p. 3Final orders - costs

Issues in the judgment

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minor

Internal inconsistency in the applicant's papers, noted and resolved by the court: the motion on its face and the supporting affidavit state the correction is from '202' to '2025', but the annexed amended memorandum — which the court ordered to govern — inserts '2020', as confirmed by the trial proceedings.

minor

The text as supplied contains typographical errors (e.g. 'tear' for 'year', 'afidavit' for 'affidavit', 'the applicants urges' for 'the applicant urges'), consistent with an uncertified transcription; verbatim quotes must be matched against the official text with care.

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, "Mbugua v Njenga & another (Civil Appeal (Application) E865 of 2025) [2026] KECA 1527 (KLR)", Case Analysis (2026). Application dated 21st November, 2025 in the appeal from Nairobi ELC No. 108 of 2013 (Court of Appeal application number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1527/eng@2026-07-31

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