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ELCAllowedAppeal No 222 of 1998 (transferred from Provincial Appeals Committee, Nakuru)· [2019] KEELC 4232 (KLR)

Christopher Wafula Mutoro v Richard Lordia Lokere [2019] KEELC 4232 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Kitale)
21 March 2019
MNMwangi Njoroge
1,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed you can amend your appeal grounds even years later, as long as no one is unfairly prejudiced.

What this practically means

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Executive summary

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This is a ruling on the appellant's Notice of Motion dated 22 November 2018, brought under Order 42 Rule 3 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave to amend his Memorandum of Appeal dated 5 May 2011, with costs in the cause. The appeal originated at the Kwanza Land Disputes Tribunal, went to the Provincial Appeals Committee at Nakuru, and was transferred to the court at Kitale. The respondent opposed, contending the memorandum, having been lodged at the Provincial Appeals Committee, was not amenable to amendment by the court and that the proposed grounds raised new issues never canvassed before the Tribunal. Mwangi Njoroge J held that a memorandum of appeal is a pleading, so the ordinary principles governing amendment of pleadings apply, as summarised in Central Kenya Ltd v Trust Bank Ltd. Relying on Kenya Hotels Limited v Oriental Commercial Bank Limited and Nathan Muhatia Pala v Joseph Nyaga Karingi, the court found the discretion extends to appeals transferred from the Provincial Land Disputes Tribunal, that the proposed grounds (lack of Tribunal jurisdiction and nullity of the adopted award) were apparent from the proceedings, and that the respondent would suffer no prejudice. The court granted leave to amend as per the draft marked CWM1, directed filing and service within 7 days, and ordered the costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Amendment of memorandum of appeal after expiry of the period for amendment without leave

Holding

The court has discretion under Order 42 rule 3(2) to permit amendment after the time limited by sub-rule (1), applying the principles for amendment of pleadings.

Reasoning

Order 42 rule 3(1) allows amendment without leave before directions under rule 13; thereafter sub-rule (2) confers discretion. A memorandum of appeal is a pleading, so the Central Kenya Ltd principles apply: the amendment must be necessary for determining the real issue, avoid multiplicity of suits, introduce no new or inconsistent cause of action, not affect accrued rights, and cause no uncompensatable prejudice.

p. 1
02

Amenability to amendment of an appeal transferred from the Provincial Land Disputes Appeals Committee

Holding

The discretion exercisable over appeals filed in the High Court extends to appeals transferred from the Provincial Land Disputes Tribunal; the respondent's objection on that basis fails.

Reasoning

The court held there is no plausible reason why a memorandum originating in the Provincial Land Disputes Appeals Committee should not be amended once transferred; the discretionary jurisdiction extends to such transferred appeals in deserving cases, and no prejudice was shown.

p. 2

Legal principles established

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  • A memorandum of appeal is a pleading and amendments to it are governed by the principles applicable to amendment of pleadings.
  • Once an appeal is transferred from the Provincial Land Disputes Appeals Committee to the High Court, the memorandum of appeal becomes part of that court's record and is amenable to amendment like any other appeal.

Court orders

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  1. 1.Leave granted to the appellant to amend his Memorandum of Appeal dated 5/5/2011 as per the draft marked CWM1
  2. 2.Appellant to file and serve the amended Memorandum of Appeal within 7 days
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (5)

  • Central Kenya Ltd vs. Trust Bank Ltd & Others
    Appeal No 222 of 1998
  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] eKLR
  • Kanawal Sarjit Singh Dhim v. Keshavji Jivraj Shah
    [2010] eKLR
  • Uhuru Highway Development Ltd v. Central Bank of Kenya
    [2002] 1 EA 314
  • Nathan Muhatia Pala t/a Muhatia Pala Auctioneers and another vs. Joseph Nyaga Karingi
    null
On appeal from
Provincial Land Disputes Appeals Committee, Nakuru (adopted by Kitale Chief Magistrate's Court)
null
Jurisdiction invoked
Order 42 Rule 3 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Christopher Wafula Mutoro v Richard Lordia Lokere [2019] KEELC 4232 (KLR)", Case Analysis (2019). Appeal No 222 of 1998 (transferred from Provincial Appeals Committee, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4232/eng@2019-03-21

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