Livoi v Macnaughton Limited

by the respondent in its submissions on the main appeal; that pre-trial directions have not yet been taken in the matter; and that it would be prudent to allow him to le the omitted documents in the form of a supplementary record of appeal in order to pave way for the main appeal to be heard and determined with a complete record. 4. The applicant avers that the reliefs he seeks to include in the amended memorandum of appeal are for this Court to allow the appeal, set aside the judgment of the trial court, and substitute it with an order allowing his memorandum of claim led before the trial court. 5. The respondent opposes the application and has led an adavit sworn on 12th November 2024 by Elvis Oyare, an associate in the rm of Hamilton, Harrison & Matthews who are on record for the respondent. Mr. Oyare avers that he is aware that the record of appeal dated 28th December 2023 does not contain a decree; does not state the reliefs sought; and the present application has been brought after the respondent led its submissions on the appeal. In the respondent’s view, this application is intended to patch up the gaps in the applicant’s case. 6. The parties have led submissions in support of their respective submissions, dated 4th November 2024 and 12th November 2024 respectively, which I have read and considered. The issues before me are whether I should extend time for the applicant to le a supplementary record of appeal to place the decree from the judgment of the trial Court before this Court; and whether I should allow the applicant to amend the memorandum of appeal to include the reliefs that he had inadvertently omitted therefrom. 7. I will deal rst with the issue relating to the ling of a supplementary record of appeal. Rule 89(1) (h) provides that the record of appeal shall contain the certied decree or order from the judgment that the appellant intends to appeal against. The appellant admits that he did not include the decree in his record of appeal, he did not le a supplementary record of appeal within fteen days of ling the record of appeal, nor has he sought leave of the deputy registrar as provided under rule 90 of this Court’s Rules, which provides that: 90. 8. Where a document referred to in rule 89 (1) and (2) is omitted from the record of appeal, the appellant may, within fteen days after lodging the record of appeal, without leave, include the document in a supplementary record of appeal led under rule 94 (3) and, thereafter, with leave of the deputy registrar on application. The applicant has lodged his application to le a supplementary record of appeal upon reading the respondent’s submissions that the record of appeal was incomplete. In pursuit of the ends of justice and for expeditious disposal of the appeal, especially bearing in mind that the applicant is a pro se litigant, the respondent could have led a supplementary record of appeal to place the decree before this Court, as rule 94(1) of this Court’s Rules allows it to do: 94. (1) 9. If a respondent is of the opinion that the record of appeal is defective or insucient for the purposes of the respondent’s case, he or she may lodge in the appropriate registry four copies of a supplementary record of appeal containing copies of any further documents or any additional parts of documents which are, in his or her opinion, required for the proper determination of the appeal. Rule 94(3), however, appears to contradict rule 90, and to grant an appellant the right to le a supplementary record of appeal, without the need to seek leave, either from the Court or from the deputy registrar as provided under rule 90. It provides as follows: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1957/eng@2024-12-20 2

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(3) An appellant may, At Any Time, lodge in the appropriate registry four copies of a supplementary record of appeal and, as soon as practicable thereafter, serve copies of it on every respondent who has complied with requirements of rule 81. (Emphasis added). 10. It is possible that rule 90 was intended to cover situations in which the distinction between primary documents, such as the decree and judgment of the trial court, which are set out in rule 89, had been omitted, and where, in keeping with the jurisprudence then, such omission was incurable. This is the interpretation that the respondent favours, as evidenced by its submission that the applicant had fteen days after lodging the record of appeal, without leave, to include the document in a supplementary record of appeal. 11. Conversely, rule 94(3) may have been intended to cover the ling of supplementary records where documents, other than primary documents, had been omitted. This distinction, however, does not clearly appear from the wording of the two rules. It appears to me, then, that the reading of the rules that is consistent with the ends of justice is one that favours allowing the applicant to le a supplementary record of appeal to include the decree. See in this regard the decision in Surestep Systems and Solutions Limited v Ataka, Kimori & Okoth Advocates [2021] KECA 953 (KLR). 12. The second issue for consideration is whether this Court should allow the applicant to amend his memorandum of appeal to include the reliefs that he seeks from this Court. Again, there is no dispute that his memorandum of appeal omitted this critical part of his case, a fact that he realized upon reading the respondent’s submissions. The applicant relies on rule 44 (now rule 46 of the 2022 Rules of this Court) which provides that: 1. 13. Whenever a formal application is made to the court for leave to amend a document, the amendment for which leave is sought shall be set out in writing.. and— a. if practicable, lodged with the Registrar and served on the respondent before the hearing of the application; or b. if it is not practicable to lodge the document with the Registrar, handed to the court and to the respondent at the time of the hearing”. In Kenya Hotels Limited vs Oriental Commercial Bank Limited [2018] eKLR, this Court, while holding that a memorandum of appeal is a document that is rightly amenable to amendment, observed that the power reserved for the Court by rule 44(1) to allow amendment of any document is a discretionary power, to be exercised judiciously and upon reason, rather than arbitrarily. With regard to the exercise of the discretion, Okwengu JA in Lilian Wanja Muthoni Mbogo t/a Sahara Consultants & 5 others v Assets Recovery Agency (Civil Appeal (Application) E221 of 2020) [2022] KECA 48 (KLR), this Court (Okwengu JA), held that: “ .... the power to amend a document under 44 of the Court’s Rules is discretionary. This means that the Court must exercise the power of amendment judiciously by granting leave to amend only where it is in the interest of justice based on the circumstances before the Court. In particular, the Court has to take into account the nature and extent of the amendment, and whether it will assist in the just determination of the real questions in dispute between the parties. On his part the applicants must demonstrate that the application is brought in good faith and also place before the Court facts that would justify the court acting in its favour.” 14. In this case, the applicant has not placed before the Court a draft of the memorandum of appeal that he seeks to replace the memorandum of appeal on record with. However, he does indicate that he wishes https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1957/eng@2024-12-20 3

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to amend the memorandum of appeal to include the reliefs that he seeks from the Court, namely that the Court allows his appeal and sets aside the judgment of the trial court; and that the Court substitutes the order of the trial court with an order allowing the applicant’s memorandum of claim led before the trial court as prayed. 15. I observed earlier in this ruling that the applicant is a layman, acting in person. I believe that taking into account this fact, the interests of justice require the exercise of discretion in favour of the applicant so that he can have a shot at prosecuting his appeal. 16. Accordingly, I nd that the application dated 29th August 2024 is merited, and it is hereby allowed. The applicant is hereby granted leave to le a supplementary record of appeal to include a certied copy of the decree from the judgment appealed against; and secondly, leave is hereby granted to amend the memorandum of appeal to include the reliefs that he seeks from this Court. The supplementary record of appeal and the amended memorandum of appeal shall be led and served within the next thirty (30) days from the date hereof. There shall be no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. MUMBI NGUGI .......................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1957/eng@2024-12-20 4

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