Ndegwa & another v Khaemba & 3 others
The bottom line
#Kenya's Court of Appeal refused to let appellants fix a defective appeal record, finding the late, vague amendment application was made in bad faith.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion to amend under Rule 46
Although Rule 46 does not prescribe the considerations, the discretion must be exercised judiciously, guided by the principles in Joseph Ochieng & Others t/a Acquiline Agencies
The court noted Rule 46 is silent on what the court should consider, but held that discretionary power must be dictated by reason rather than exercised capriciously or arbitrarily, and adopted the amendment principles from the Acquiline Agencies case as a useful guide.
Good faith and abuse of court process
The application was reactionary to the respondents' strike-out application, filed instead of responding to that application, and constituted an abuse of process made in bad faith
The applicants were served with the respondents' application to strike out the appeal but instead of responding, filed this amendment application. The court found this a back-door attempt to defeat the strike-out application, exposing the applicants' laxity or indolence.
Specificity of the amendment sought
The application failed because it did not identify the specific illegible pages nor attach the pages sought to be amended
The court agreed with the respondents that a blanket application without identifying the specific pages would open the floodgates to introducing new pleadings, and that an application not specifically pleaded could not be allowed.
Legal principles established
#- Discretionary power, however wide, must be exercised judiciously and based on reason, not whim or caprice
- An application for leave to amend must set out the amendment in writing and identify the specific pages or documents to be amended
Court orders
#- 1.The Notice of Motion dated 2nd June 2026 seeking leave to amend the record of appeal is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court at Nairobi
- Case No. 576 of 2012
- Jurisdiction invoked
- Court of Appeal Rules, 2022 (Rule 46) - application for leave to amend the record of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa & another v Khaemba & 3 others", Case Analysis (2026). Civil Appeal (Application) E093 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1673/eng@2026-09-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.