James Njuguna v Francis Ngambi Rukomia & 3 Others [2010] KECA 412 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a man swap himself into an appeal because he never personally filed a notice of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to amend the memorandum of appeal in Civil Appeal No. 121 of 2007 to be cited as appellant in place of the first respondent
- 2.Whether the absence of a notice of appeal lodged by the applicant can be cured by amendment or by the overriding objective provisions of sections 3A and 3B of the Appellate Jurisdiction Act
Key legal issues
#Whether the overriding objective can cure the absence of a notice of appeal by the proposed appellant
No. Sections 3A and 3B assist only a party who has lodged an appeal subsequently found defective; a party who never lodged a notice of appeal cannot be treated as an appellant, and the court would not allow the notice of appeal lodged by a different party (County Council of Nakuru) to be amended to name the applicant.
The court called for the records of Civil Appeals Nos. 121 and 122 of 2007 and found that the notice of appeal at page 179 of the record in Civil Appeal No. 121 of 2007 was lodged by the County Council of Nakuru, not the applicant. The established principle that only a party who has filed a notice of appeal can appeal stands unaffected by the new thinking of sections 3A and 3B, which enriches rather than uproots settled principle. Amendments would therefore have been futile, and the motion was dismissed with costs.
Whether the first respondent's failure to swear an affidavit disowning the appellant's name should defeat or permit the amendment
The court declined to refuse the amendment merely because the first respondent had not sworn an affidavit, since both parties were represented by the same firm in the superior court and the first respondent remained a party able to raise issues; but the amendment failed on the notice-of-appeal ground in any event.
It was common ground that the applicant and first respondent shared one firm of advocates in the superior court, so the first respondent must have been aware of the motion and could have come forward to claim the appellant's role but did not. The court held it ought not refuse the amendment on that basis alone. However, the decisive objection was that the applicant never lodged a notice of appeal, rendering the amendment futile.
Legal principles established
#- Only a party who has filed a notice of appeal can appeal to the Court of Appeal; the overriding objective provisions cannot be invoked to confer appellant status on a party who never lodged a notice of appeal.
- Sections 3A and 3B of the Appellate Jurisdiction Act assist only a party who has lodged an appeal later found defective, not a party who has lodged no notice of appeal at all.
- The overriding objective introduced by sections 3A and 3B does not displace well-established principles and precedent in the exercise of judicial discretion.
Court orders
#- 1.The notice of motion dated 31st January, 2008 and lodged in the Court on 1st February, 2008 be and is hereby dismissed with costs to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Single-judge ruling dismissing the applicant's motion for leave to amend the memorandum of appeal in Civil Appeal No. 121 of 2007 so as to substitute him for the first respondent as appellant, holding that only a party who has lodged a notice of appeal can appeal, and that the overriding objective provisions cannot cure the absence of a notice of appeal by the applicant.
I accordingly agree with Mr. Kahiga that it would be futile to grant the applicant the amendments it is seeking. He cannot become an appellant when he in fact filed no notice of appeal.p. 3
- Jurisdiction invoked
- Rules 44 and 52 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act (inherent/overriding objective jurisdiction)
Relief refused
#Leave to amend the memorandum of appeal in Civil Appeal No. 121 of 2007 to substitute the applicant as appellant
The applicant never lodged a notice of appeal; the notice of appeal in the record was lodged by the County Council of Nakuru, and a party who has not lodged a notice of appeal cannot be treated as an appellant; granting the amendment would be futile
Costs
Dismissed with costs to the 2nd respondent (African Inland Church)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I accordingly agree with Mr. Kahiga that it would be futile to grant the applicant the amendments it is seeking. He cannot become an appellant when he in fact filed no notice of appeal. That being the view I take of the matter, I order that the notice of motion dated 31 st January, 2008 and lodged in the Court on 1st February, 2008 be and is hereby dismissed with costs to the 2nd respondent.
It is a well established principle that only a party who has filed a notice of appeal can appeal to this Court. The new thinking brought in by sections 3A and 3B cannot and has not overturned that principle.
Those provisions can only be invoked to assist a party who has lodged an appeal but which appeal is subsequently found to be defective in some way.
Issues in the judgment
#The applicant's motion is described as lodged on 1st February 2008 yet is referred to in the court's citation of the City Chemist case as 'Civil Application No. NAI 302 of 2008', matching the number of the cited authority; the record does not give this application's own appeal/civil application number, creating possible ambiguity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Njuguna v Francis Ngambi Rukomia & 3 Others [2010] KECA 412 (KLR)", Case Analysis (2010). Civil Application No. NAI 302 of 2008 (motion dated 31st January 2008, within Civil Appeal No. 121 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/412/eng@2010-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.