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Court of AppealAllowedCivil Appeal No. 4 of 2006

William Ngare & 4 others v Public Trustee & 10 others [2012] KECA 4 (KLR)

Court of Appeal
17 February 2012
1,351 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 it can amend appeal documents, including a Notice of Appeal filed in the High Court, though the applicants paid costs.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Waki, Nambuye and Rawal, JJ.A.) on a notice of motion dated 30th July 2010 brought under Rules 44(1) and (2) of the Court's Rules. The appellants sought leave to amend the Notice of Appeal, Record of Appeal, Supplementary Record of Appeal and Memorandum of Appeal: to remove the name of Mary Gathoni Wanderi; to remove the late Jackson (Mugo) Wanderi, whose inclusion as appellant was said to be inadvertent (he having predeceased the deceased in the underlying succession cause, H.C. Succession Cause No. 1401 of 1990); and to correct the names Daniel Miano to David Miano and Winnie Rose Wangari to Winnie Rose Wangu. The variance had been noticed by the Court on 26th April 2010 when the appeal came up for hearing, and the appellants were directed to regularize the record. The 1st respondent did not oppose. Counsel for some respondents opposed, arguing that counsel had the names within their knowledge when filing, that Mary Gathoni Wanderi's representative capacity was unsubstantiated, that the appeal was unarguable, and that the Court lacked jurisdiction to amend a Notice of Appeal filed in the High Court. The Court rejected the jurisdictional objection, holding that the Notice of Appeal is the document that sets in motion the Court's jurisdiction, is the anchor of the appeal, and is amenable to amendment under Rule 44(1), fortified by section 3(2) and sections 3A and 3B of the Appellate Jurisdiction Act. The application was allowed in full, Mary Gathoni Wanderi was enjoined as 11th respondent with directions for service, and the applicants were ordered to bear the costs of the application in any event. The decision under appeal (Githinji, J.'s ruling of 29th April 2004) was not disturbed.

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 of Appeal has jurisdiction to amend a Notice of Appeal which is filed in the High Court
  2. 2.Whether the amendments sought to the Notice of Appeal, Record of Appeal, Supplementary Record of Appeal and Memorandum of Appeal should be allowed
  3. 3.Whether Mary Gathoni Wanderi should be enjoined as the 11th respondent

Key legal issues

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01

Whether the Court of Appeal can amend a Notice of Appeal filed in the High Court

Holding

Yes. The Notice of Appeal is the anchor of the appeal and is among the documents amenable to amendment under Rule 44(1); the Court rejects the submission that it is incapable of amendment before the Court of Appeal.

Reasoning

The Notice of Appeal is filed in the High Court only for expediency; in law it is the document that sets in motion the Court of Appeal's jurisdiction and is the first document in the record of appeal, described as an anchor to the appeal. Rule 44(1) contemplates amendment of documents including the Notice of Appeal. Section 3(2) of the Appellate Jurisdiction Act vests in the Court of Appeal, for purposes incidental to appeals, the power and jurisdiction of the High Court, and sections 3A and 3B impose a duty to facilitate just, expeditious, proportionate and affordable determination of proceedings.

p. 3
02

Joinder of Mary Gathoni Wanderi as 11th respondent

Holding

She was joined as 11th respondent, representing the estate of the late Jackson Mugo Wanderi, because any order made in the appeal may affect her and that estate.

Reasoning

Mary Gathoni Wanderi, widow of Jackson Mugo Wanderi who predeceased the deceased whose estate was dealt with in the succession cause, had expressed through counsel her wish not to be an appellant. The Court found the inclusion of the late Jackson Mugo Wanderi as an appellant was inadvertent and removed his name, joining the widow as respondent instead so that the estate affected by the appeal is properly represented and served.

p. 4
03

Arguability of the main appeal

Holding

The Court declined to determine whether the appeal is arguable, leaving that to the bench seized of the main appeal.

Reasoning

Counsel for some respondents argued that the appeal was not arguable and the application ought to be struck out. The Court held that the arguability of the appeal is a matter for the bench that will hear the main appeal, not for an interlocutory amendment application.

p. 4

Legal principles established

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  • A Notice of Appeal filed in the High Court is amenable to amendment by the Court of Appeal; it is the document that sets the Court's jurisdiction in motion.
  • Under section 3(2) of the Appellate Jurisdiction Act, the Court of Appeal in incidental matters exercises the power, authority and jurisdiction vested in the High Court.

Court orders

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  1. 1.The Notice of Motion dated 30th July, 2010 is allowed
  2. 2.Leave granted to amend the Notice of Appeal filed on 7th May, 2004 (removal of Mary Gathoni Wanderi; correction of Daniel Miano to David Miano and Winnie Rose Wangari to Winnie Rose Wangu)
  3. 3.Leave granted to amend the Record of Appeal filed on 16th January, 2006 to remove Jackson (Mugo) Wanderi as an appellant
  4. 4.Leave granted to amend the Supplementary Record of Appeal filed on 19th March, 2008 to remove Jackson (Mugo) Wanderi as an appellant
  5. 5.Leave granted to amend the Amended Memorandum of Appeal amended on 7th March, 2008 (removal of Mary Gathoni Wanderi; correction of Winnie Rose Wangu's name)
  6. 6.Mary Gathoni Wanderi enjoined as the 11th respondent, to be served with the order and the amended records
  7. 7.Costs of the application to be borne by the applicants in any event

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya
HCSC. No. 1401 of 1990
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act; Rule 44(1) and (2) of the Court of Appeal Rules

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.

Indeed, it is the first document in the record of appeal and may well be described as an “anchor” to the Appeal.
p. 3Status of the Notice of Appeal
We reject the submission that the Notice of Appeal is incapable of amendment before this Court.
p. 3Jurisdiction to amend Notice of Appeal
The upshot is that the Notice of Motion dated 30th July, 2010 is hereby allowed.The amendments as prayed therein shall be made in the Notice of Appeal, Recordof Appeal and Memorandum of Appeal.
p. 4Final orders - application allowed
The costs of this application shall be born by the applicants in any event.
p. 4Costs order

Issues in the judgment

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minor

The appeal is stated to be from HCSC. No. 1401 of1190, an apparent typographical error for 1401 of 1990, the succession cause number given elsewhere in the judgment.

minor

The supporting affidavit deponent is described as 'William Ngare who was the 2nd appellant in unamended record of appeal', yet the cause title lists him as 1st appellant.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "William Ngare & 4 others v Public Trustee & 10 others [2012] KECA 4 (KLR)", Case Analysis (2012). Civil Appeal No. 4 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/4/eng@2012-02-17

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