Patrick Kithinji Matumbi v Monica Rigiri Kanga

motion; in the applicant’s supporting affidavit sworn on 21/4/2026; and in the applicant’s supplementary affidavit dated 15/6/2026. The application was canvassed through written submissions dated 24/6/2026, filed by M/s A G Riungu & Co Advocates. 3. The case of the applicant is that he wishes to amend his memorandum of appeal to include a prayer for the matter to be remitted back to the trial court for retrial. The appellant adds that the amendment has been necessitated by the discovery of additional documentary evidence which was not available during trial, including consent of the Land Control Board; transfer documents; receipts relating to registration; valuation form; and certificate of title. He asserts that the above additional evidence is material and would have an important influence on the outcome of the case. He urges the court to grant him leave to amend the memorandum of appeal. 4. The respondent opposed the application through his replying affidavit dated 8/6/2026 and written submissions dated 29/7/2026, filed by M/s Munene Kirimi & Co Advocates. The case of the respondent is that, whereas an appeal is supposed to be confined to the issues that were litigated in the trial court, the applicant is attempting to introduce issues that were never litigated in the trial court. Making reference to paragraphs 8 and 9 of the draft amended memorandum of appeal, the respondent faults the appellant for irrationally faulting the trial court on account of its alleged failure to consider and evaluate evidence that was never presented to the trial court for evaluation. ELCL APPEAL NO E002 OF 2026 (RULING) Page 2

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5. The respondent argues that whereas the appellant’s application is premised on his alleged discovery of new evidence, no attempt has been made to move the trial court with a view to introducing the alleged new evidence. Making reference to the appellant’s case in the trial court, the respondent argues that the appellant initially contended that he was given the suit land as a gift but later changed his case and contended that he bought the suit land during an auction in 2001, adding that the appellant never presented any evidence relating to the charge that culminated in the alleged auction. The respondent observed that the impugned transfer was undertaken after the demise of the deceased. The respondent urges the court to reject the appellant’s application. 6. The court has considered the application; the response to the application; and the submissions tendered by the parties. The court has also considered the relevant legal frameworks and jurisprudence. As observed in the introduction part of this ruling, the single issue falling for determination in the ruling is whether the application under consideration meets the criterial upon which this court exercises jurisdiction to grant an appellant leave to amend the memorandum of appeal. 7. The court’s general powers to grant an appellant leave to amend the memorandum of appeal is donated by Order 42 rule 3(2) of the Civil Procedure Rules. Although the appellant did not cite the above framework, there is no doubt that it was within the context of the framework that the ELCL APPEAL NO E002 OF 2026 (RULING) Page 3

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appellant sought leave to amend his memorandum of appeal. 8. Our courts have over the years outlined general principles that guide the general jurisdiction to grant leave to a party to amend pleadings. As a general principle on amendment of pleadings, courts will normally allow amendment of pleadings at any stage of the proceedings if the amendment can be done without occasioning injustice or prejudice to the other party. Secondly, if the likely prejudice can be indemnified by an award of costs, the plea for leave to amend will be allowed (see Eastern Bakery v Castelino (1958) EA 461. 9. The third guiding principle is that the object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted on the basis of the true state of facts which parties really and finally intend to rely on. Lastly, the overall objective of amendment is to make the function of the court more effective in determining the substantive merits of the parties’ respective cases. 10. The court has looked at the intended amendments. They relate to the grounds of appeal and the prayers sought in the memorandum of appeal. In so far as they relate to the grounds of appeal, the proposed amendments are contained in paragraphs 8 and 9 of the draft amended memorandum of appeal and read as follows: “8. The Learned Magistrate erred in law and fact by failing to properly evaluate the totality of ELCL APPEAL NO E002 OF 2026 (RULING) Page 4

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the evidence before arriving at a finding of fraud and illegality. 9. The Learned Magistrate erred in law and fact by making a finding on the absence of Land Control Board consent and transfer of documents when the same were available in the Land Registry File but were not availed to the court.” 11. It is clear from the above proposed amendments that the appellant wants to introduce grounds focusing on the trial court’s failure to evaluate the totality of the evidence that was before it and for making a finding in the absence of the consent of the Land Control Board and the transfer documents. Yet it does clearly emerge from the grounds in the notice of motion that the above documents were never presented to the trial court as evidence. The appellant having failed to tender the above evidence, there cannot be a proper basis for raising these as legitimate grounds of appeal. 12. Secondly, a perusal of the existing grounds of appeal reveals that the question as to whether the respondent proved fraud to the required standard is adequately covered in the existing grounds of appeal. Thirdly, the alleged discovery of new evidence cannot be a ground for amending a memorandum of appeal. I say so because the trial court cannot be blamed for failure to consider or evaluate evidence that was never tendered before it. 13. For the above reasons, I do not think the application under consideration meets the criterial for granting an appellant ELCL APPEAL NO E002 OF 2026 (RULING) Page 5

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leave to amend a memorandum of appeal. The result is that the application is rejected and dismissed for lack of merit. 14. In line with the general principle, costs follow the event. Consequently, the appellant shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 29TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Appellant – Absent Respondent – Absent E. Tupet – Court Assistant ELCL APPEAL NO E002 OF 2026 (RULING) Page 6

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