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Court of AppealAllowedCivil Application No. 58 of 2009

Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2010] KECA 149 (KLR)

Court of Appeal
16 July 2010
SBS.E.O. BosirePWP.N. WakiDAD.K.S. Aganyanya
1,006 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you can amend your memorandum of appeal at any stage, as long as justice isn't prejudiced.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Bosire, Waki and Aganyanya, JJA) ruled on a motion under rule 44(1) of the Court of Appeal Rules in which the applicant sought leave to amend his memorandum of appeal, filed in Civil Appeal No. 33 of 2007, to add one further ground of appeal and one further prayer omitted, he said, inadvertently. The appeal challenged a ruling of Kasango J of the High Court (H.C.C.C. No. 205 of 1999, dated 18 December 2006) rejecting an application to review and set aside an ex parte judgment obtained against the applicant in a dispute exceeding Shs. 17 million involving a prime Nairobi property. The respondent opposed, arguing belatedly that the appeal was filed out of time and thus no valid memorandum existed to amend; the Court rejected that objection as raised without leave and out of time under rules 80 and 101. On the merits, the Court held that although rule 44(1) empowers amendment of 'any document', primary documents cannot be amended to validate incompetent appeals, and that a memorandum of appeal is not a primary document since it does not stem from the superior court proceedings but is a creation of the appellant; following Uhuru Highway Development Ltd v Central Bank of Kenya, it is always amenable to amendment subject to the interests of justice. Exercising its discretion judicially, the Court granted the application, directing that the amended memorandum be filed and served within 7 days, with the applicant to bear the costs of the motion in any event.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should exercise its discretion to grant leave to amend the memorandum of appeal to add one further ground of appeal and one further prayer
  2. 2.Whether a memorandum of appeal is a primary document amenable to amendment

Key legal issues

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01

Whether the memorandum of appeal is a primary document capable of amendment

Holding

The memorandum of appeal is not listed among the primary documents under rules 85(1) and 85(2A) and is therefore amendable in the discretion of the Court, subject to the interests of justice.

Reasoning

Rule 85(1)(a) to (k) lists documents to be included in the record of appeal and rule 85(2A) lists those which may come in by supplementary record. The memorandum of appeal appears in neither list; it is a creation of the appealing party rather than a document stemming from the proceedings in the superior court, following Omolo JA in Uhuru Highway Development Ltd v Central Bank of Kenya.

p. 2
02

How the discretion to amend a memorandum of appeal should be exercised

Holding

The discretion, though wide, is judicial and must be exercised on reason, not whim or caprice; where the amendment is relevant, no prejudice results and the applicant seeks to ventilate genuine issues before the final court, leave should be granted.

Reasoning

The rule confers the power but does not prescribe how it is exercised. The Court considered the substance of the dispute (over Shs. 17 million and a prime Nairobi property), that the judgment under appeal was obtained ex parte, that the intended amendments were not irrelevant, and that the respondent would have an opportunity to oppose the appeal, finding no likely prejudice.

p. 2

Legal principles established

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  • A memorandum of appeal is not a primary document and, subject to the interests of justice, is amenable to amendment; primary documents cannot be amended to validate otherwise incompetent appeals.

Court orders

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  1. 1.Leave to amend the memorandum of appeal granted; the amended memorandum of appeal as shown in the draft annexed to the motion to be filed and served within 7 days of the ruling
  2. 2.The applicant to bear the costs of the motion in any event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
PW
majority
DA
majority
On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Court
H.C.C.C. No. 205 of 1999
Jurisdiction invoked
Rule 44(1) of the Court of Appeal Rules (application for leave to amend memorandum of appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is clear on authority that primary document are not open to amendment in order to validate appeals which are otherwise incompetent
p. 2Primary documents and amendment
Accordingly, a memorandum of appeal, subject to the interests of justice, is always amenable to amendment.
p. 2Amenability of memorandum of appeal to amendment
The discretion to amend, like all discretions exercisable by the court, however wide or unfettered, must not be based on whim or caprice. It is a judicial process and must therefore be based on reason.
p. 2Judicial discretion
The amended memorandum of appeal as shown in the draft annexed to the motion shall be filed and served within 7 days of this ruling. The applicant shall bear the costs of the motion in any event.
p. 2Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2010] KECA 149 (KLR)", Case Analysis (2010). Civil Application No. 58 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/149/eng@2010-07-16

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