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ELCDismissedEnvironment and Land Appeal E028 of 2021· [2023] KEELC 17961 (KLR)

Ngalo & 2 others (Suing as the Chairman, Secretary and Treasurer Respectively of Githunguri Riverside Dwellers Self Help Group) v Njoroge

Environment and Land Court
31 May 2023
ANA. Nyukuri
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let land buyers add a new claim on appeal because they never raised it in their original case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) on a Notice of Motion dated March 16, 2023 by the Appellants, officials of Githunguri Riverside Dwellers Self Help Group, seeking leave to amend their Memorandum of Appeal dated July 5, 2021. The proposed amendment sought to add a prayer for cancellation of the Respondent's certificate of title over LR No. 7340/22 and issuance of a new title to the Plaintiff, on the basis that the Respondent obtained registration during the pendency of the suit in contempt of a trial court directive. The Respondent opposed, arguing the prayer was new, was never pleaded or litigated before the trial court, and that the application was an abuse of process filed only after being served with the Respondent's submissions. The court framed a single issue: whether leave to amend should be granted. It held that while Order 42 Rule 3 confers an unfettered discretion to amend a Memorandum of Appeal, amendment cannot introduce a new cause of action. The proposed prayer was never sought in the plaint dated May 22, 2018, and no evidence was taken on it below; raising it on appeal would amount to unprocedurally using the appellate court to amend primary pleadings, causing procedural injustice to the Respondent. The alleged contempt was also unproved, no court order having been attached. The application was dismissed with costs to the Respondent, and the appeal was reserved for judgment on a date to be fixed in court.

Key legal issues

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01

Whether leave to amend a Memorandum of Appeal should be granted to introduce a new prayer

Holding

Amendment refused because the proposed prayer for cancellation of title was a new cause of action not pleaded in the plaint or litigated before the trial court

Reasoning

The court has unfettered discretion under Order 42 Rule 3 to allow amendment of a Memorandum of Appeal, but not where a new cause of action is introduced. The prayer for cancellation of the Respondent's title was never sought in the plaint dated May 22, 2018, and no evidence was taken on it below. Raising it on appeal would use the appellate court to amend primary pleadings, prejudicing the Respondent who cannot respond. Contempt of a court order was not proved, no order having been attached.

p. 3

Legal principles established

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  • An appellate court will not allow an amendment to a Memorandum of Appeal that introduces a new cause of action never pleaded or litigated before the trial court

Court orders

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  1. 1.The Notice of Motion dated March 16, 2023 seeking leave to amend the Memorandum of Appeal is dismissed
  2. 2.Costs of the application to the Respondent
  3. 3.Matter reserved for judgment on a date to be fixed in court, both parties having filed submissions

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure Rules 2010Order 42 Rule 3(2)
  • Civil Procedure Rules 2010Order 8 Rules 3(1) and 5(1)

Cases cited (5)

  • Suresh Kumat Sofat & Another v. Trustees of Kenya Assemblies of God & another
    [2022] eKLR

    Court's discretion to allow amendments

  • Ochieng v. First National Bank of Chicago
    Civil Appeal No. 147 of 1991

    Amendment of pleadings

  • Josiah Magena v. Wakenya Pamoja Sacco Society Ltd
    Nrb ELRC Cause No. 510 of 2014

    Amendment of pleadings

  • George Gikubu Mbuthia v. Consolidated Bank of Kenya Limited & Another
    [2016] eKLR

    Court should decline amendment introducing a new or inconsistent cause of action

  • Institute of Social Accountability & Another v. Parliament of Kenya & 3 Others
    [2014] eKLR

    Object of amendment; conditions for allowing amendments

Jurisdiction invoked
Order 42 Rule 3 of the Civil Procedure Rules 2010 (appellate jurisdiction of the Environment and Land 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, "Ngalo & 2 others (Suing as the Chairman, Secretary and Treasurer Respectively of Githunguri Riverside Dwellers Self Help Group) v Njoroge", Case Analysis (2023). Environment and Land Appeal E028 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17961/eng@2023-05-31

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