Mwaura & 2 others v Matu & another; Magee Law LLP (Applicant) (Civil Appeal (Application) 152 of 2017) [2025] KECA 2117 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2117 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CIVIL APPEAL (APPLICATION) 152 OF 2017 S OLE KANTAI, JA NOVEMBER 28, 2025 BETWEEN MOSES MWAURA KAGWI .............................................................. 1ST APPLICANT JAPHAT NJUE MWAURA ............................................................... 2ND APPLICANT ISAAC NGARI MURIMI .................................................................. 3RD APPLICANT AND JESSE CATHERINE KATHII MATU ........................................... 1ST RESPONDENT VIRGINIA WAKATHAIYA NJUKI ............................................ 2ND RESPONDENT AND MAGEE LAW LLP .................................................................................... APPLICANT (An application for leave to amend the citation of the appeal against the Ruling of the High Court at Embu (J. M. Bwonwonga, J.) delivered on 31st August, 2016 in H.C. Succ. Cause No. 1394 of 2002) RULING 1. The applicants have applied by Motion brought under rules 35 and 44(2) of the Court of Appeal Rules amongst other provisions of law that I grant them leave to “amend the case citation and/or the heading” of the appeal. In grounds in support of the application and in an affidavit by a lawyer, Hamba Caroline it is stated amongst other things that the case citation of the record of appeal, notice of address and Memorandum of Appeal, captures Moses Mwaura Kagwi and Japhat Njue Mwaura as the appellants and Isaac Ngari Murimi as a petitioner whereas the ruling appealed against was in their favour; that the respondents, Virginia Wakathaiya Njuki and Jessie Catherine Kathii Matu are meant to be the appellants and not the respondents; that the inadvertent error in the appeal was made by the applicants “ who are the firm of advocates instructed by Virginia Wakathaiya Njuki and Jessie Catherine Kathii https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2117/eng@2025-11-28 1
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Matu” to institute the appeal; that no prejudice will be occasioned to any party if I grant the application. It is further stated that record of appeal was filed on 23rd October, 2017; that the error in naming parties on the appeal was only noted recently. 2. In a replying affidavit by Lawyer Joe Kathungu it is deponed in opposition to the application that it is bad in law, frivolous and afterthought and that the application is an abuse of court process; that the application has been brought too late as directions have already taken and parties have filed submissions; that no sufficient reason has been given for the application being brought late and that the application will occasion prejudice to the “Appellants” and should be dismissed with costs. 3. Lawyer Kathungu does not say what prejudice will be suffered by his clients. 4. I am asked to allow the applicants to amend citation in record of appeal whose effect will be to correct position of parties who were wrongly placed when record of appeal was prepared. 5. I take the view that leave to amend a document should ordinarily be freely given particularly where an appeal has not been heard or judgment given. The appeal here is pending awaiting hearing. The applicants are saying that I should grant leave to enable parties to be properly named as appellants and respondents in the appeal. Grant of such leave can surely not prejudice any party; it would instead properly name the parties so that there is no confusion when the appeal comes for hearing. 6. I allow the Motion. Let the applicants lodge the appropriate document within ten (10) days of today. Costs of the application will be in the appeal. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ................................... 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/2025/2117/eng@2025-11-28 2
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