Careenas Holdings t/a Digitec Cyber v Nawab Mohamed Haji Mirdor [2021] KEELC 4450 (KLR)
The bottom line
#Kenyan appellants can amend an appeal from the Rent Tribunal without court permission—but only before the court gives case directions.
What this practically means
#Executive summary
#Key legal issues
#Whether the application cites the correct legal provisions
The application is premised on the wrong provisions; the correct provision for amendment of a memorandum of appeal is Order 42 Rule 3
The court found that the provisions cited by the applicant (Articles 40, 50, 159, Section 3A, Order 8 and 51) do not apply to an application to amend a memorandum of appeal. Order 42 Rule 3 is the applicable provision, as submitted by the respondent's counsel.
Whether leave to amend is necessary at this stage
Leave is unnecessary because the court is yet to give directions; the application is premature
Under Order 42 Rule 3(1), the appellant may amend without leave before directions are given. Since the court had not yet given directions, leave was not required, rendering the application premature and liable to be dismissed.
Whether the lease agreement is properly before the court
The court found no lease agreement in the original Tribunal file but deferred the issue to the stage of giving directions
The court perused the original Tribunal file and found no reference to any lease agreement and none was produced. However, since the application was not one for introduction of additional evidence, the court declined to pronounce itself, reserving the issue for directions.
Legal principles established
#- An appellant may amend a memorandum of appeal without leave at any time before the court gives directions under rule 13
Court orders
#- 1.Application dismissed with costs to the respondent
- 2.No order made on leave to amend as the court is yet to give directions in the appeal
- On appeal from
- Business Premises Rent Tribunal
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Civil Procedure Act and Civil Procedure Rules (Order 42); invoked by applicant under Sections 3A of the Civil Procedure Act, Articles 40, 50 and 159 of the Constitution and Order 8 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Careenas Holdings t/a Digitec Cyber v Nawab Mohamed Haji Mirdor [2021] KEELC 4450 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4450/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.