Case ID:170447

John Mugambi & Mugambi & Company Advocates

v Kiama Wangai [2021] eKLR

Case Metadata

Case Number:

Civil Application 64 of 2020

Parties:

John Mugambi & Mugambi & Company Advocates v Kiama Wangai

Date Delivered:

19 Feb 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Mohammed Abdullahi Warsame

Citation:

John Mugambi & Mugambi & Company Advocates

v Kiama Wangai [2021] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Notice of Motion allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: WARSAME J.A. IN CHAMBERS)

CIVIL APPLICATION NO. NAI 64 OF 2020

BETWEEN

JOHN MUGAMBI..........................................1

ST

APPELLANT/APPLICANT

MUGAMBI &COMPANY ADVOCATES...2

ND

APPELLANT/APPLICANT

AND

DR.KIAMA WANGAI ................................................................RESPONDENT

(An application for leave to amend the Memorandum of Appeal lodged on 21

st February 2020 pursuant to Rule 31, 44(1) of the Court of Appeal Rules, 2010 and Article 159 (2) (d) of the Constitution of Kenya)

*************************

RULING OF THE COURT

1. Before me is the notice of motion dated 19th November 2020 wherein the applicants seek leave to amend the memorandum of appeal lodged on 21st February 2020in respect of

Civil Appeal No.

64 of 2020 at Nairobi

. The grounds in support of the application for leave to amend is to the effect;

a). That, the memorandum of appeal as lodged lacks orders and/or prayers sought before this Court;

b). That, the orders and/or prayers sought in the appeal were inadvertently excluded through an honest

mistake at the time the appeal was lodged;

c). That, the intended amendment is necessary to enable the Court determine all the issues raised in the appeal and pronounce itself with finality and on merit.

d). That, the intended amendment will not occasion any prejudice to the respondent.

2. The applicants’ upon noticing the anomaly in their memorandum of appeal dated 21st February 2020 presents to this Court the Notice of Motion under

Rule 31, 44(1)

of the Court of Appeal Rules, 2010 and

Article 159 (2)(d)

of the Constitution of Kenya, seeking leave to amend the memorandum of appeal to reflect orders setting aside the Ruling and Order of the trial court dated 19th July, 2018, remitting the Advocate-Client Bill of Costs dated 20th June 2016 for taxation before the Deputy Registrar and that cost do abide in the outcome of the appeal.

3. This Court is urged to invoke its discretionary powers under

Rule

31

which provides that on any appeal this Court’s power, so far as its jurisdiction permits, to confirm, reverse or vary the decision of the superior court, or to remit the proceedings to the superior court with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders, including orders as to costs. The issue before me is whether to grant the orders sought. It is trite that the power reserved for the Court by rule 44(1) of the Court of Appeal Rules to amend any document is a discretionary power. Like all judicial discretion however, it must be exercised judiciously and upon reason, rather than arbitrarily, on humour, or fancy. (See

Kanawal Sarjit Singh Dhim v

KeshavjiJivraj Shah

[2010] eKLR

). A memorandum of appeal, such as the one that the applicant seeks to amend is a document that is rightly amenable to amendment. (See

Kenya Hotels Limited v

Oriental Commercial Bank Limited

[2018] eKLR

).

4. My view therefore as was the view of this Court in

George Gikubu

Mbuthia v Consolidated Bank of Kenya Ltd & Anothe

r (2016) eKLR

, that parties to a suit have the right to amend their pleadings at any stage of the proceedings before judgment and that courts should liberally allow such amendments. There are situations when the court will refuse to exercise its discretion to allow amendments. Such cases include where a new or inconsistent cause of action is introduced; where vested interests or accrued legal rights will be adversely affected; where prejudice or injustice which cannot be properly compensated in costs is occasioned to the respondent. The orders included to the memorandum of appeal reveal no basis to deny the application herein, therefore the Notice of Motion dated 19th November 2020 is allowed with costs to abide in the appeal.

Dated and delivered at Nairobi this 19

th

day of February, 2021

M. WARSAME

……..……....……….

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR