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Court of AppealAllowedNot stated in the judgment (application dated 15th January 2024)

Kenya United Steel Company (2006) Limited v Ahmed & another (Civil Appeal (Application) E141 of 2022) [2024] KECA 1734 (KLR)

Court of Appeal of Kenya
6 December 2024
945 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 allowed a steel company to strengthen its appeal by adding new grounds, confirming amendments are freely allowed when they clarify issues already raised at trial.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (S. Gatembu Kairu, JA) delivered at Nairobi on 6th December 2024 in an application dated 15th January 2024 under Rules 44 and 46 of the Court of Appeal Rules, in which Kenya United Steel Company (2006) Limited, the appellant, sought leave to amend its Memorandum of Appeal. The underlying appeal challenges a judgment of the Environment and Land Court at Mombasa (A. Omollo, J) delivered on 31st October 2017, which nullified a Wakf deed over Plot No. 884 (original 780/1) Section VI M.N for non-compliance with Section 4(1) of the Wakf's Commissioners Act. The original Memorandum of Appeal raised four grounds, including limitation, locus standi and the effect of the Wakf's registration. The proposed amendments, brought through new advocates, sought to add complaints concerning the trial judge's interpretation of Section 4(1) of the Wakf's Commissioners Act, the Wakf Deed, the 1st respondent's locus standi and the nullification of subsequent transactions. Relying on Kenya Hotels Limited v Oriental Commercial Bank Limited, the court held that amendment is a discretionary power to be exercised judiciously, and that amendments founded on matters canvassed at trial are more readily allowed. Finding that the proposed grounds did not go outside the matters determined at trial, that the application was filed promptly after the change of advocates, and that no demonstrable prejudice would result, the court allowed the application and directed the applicant to file and serve the amended Memorandum of Appeal within 14 days, with costs of the application to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether leave should be granted to amend the Memorandum of Appeal
  2. 2.Whether the delay in bringing the application should defeat it
  3. 3.Whether the respondents would suffer prejudice if the amendments were allowed

Key legal issues

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01

Whether the proposed amendments to the Memorandum of Appeal should be allowed

Holding

The amendments do not introduce grounds outside the matters canvassed and determined at trial; they clarify the appellant's grievances and no prejudice is demonstrated, so leave is granted.

Reasoning

The court applied the principles in Kenya Hotels Limited v Oriental Commercial Bank Limited, holding that amendment is discretionary and must be exercised judiciously. Amendments introducing grounds properly founded on evidence adduced and canvassed at trial are more readily allowed. The proposed grounds here — on locus standi, limitation, the Wakf's Commissioners Act and subsequent transactions — all arise from matters determined by the ELC, so they assist in determining the real questions in dispute without introducing new, unpleaded grounds.

p. 2
02

Whether the delay in making the application is fatal

Holding

The delay is not fatal: the application was filed shortly after the applicant changed advocates, and no demonstrable prejudice would be occasioned to the parties.

Reasoning

The 1st respondent's counsel raised the delay, noting the suit was instituted in 2011 and judgment delivered in 2017. The court observed that the appeal was filed in 2022 and the application shortly after the change of advocates in December 2023. Weighing this against the absence of demonstrable prejudice, the court found the delay did not justify refusing the amendment.

p. 3

Legal principles established

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  • Leave to amend a document is a discretionary power that must be exercised judiciously and upon reason, and amendments founded on matters canvassed at trial and causing no prejudice will generally be allowed

Court orders

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  1. 1.Leave to amend the Memorandum of Appeal granted
  2. 2.The applicant to file and serve the amended Memorandum of Appeal (in the form of a supplementary record of appeal) within 14 days from the date of delivery of the ruling

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court, Mombasa
Not stated
Jurisdiction invoked
Rules 44 and 46 of the Court of Appeal Rules (application for leave to amend a 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 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.
p. 2Judicial discretion in amendment applications
If the applicant is merely introducing a ground of appeal that is properly founded on the evidence that was adduced and canvassed before the trial court, which it is alleged the trial judge ignored or misapplied, the Court will more readily allow the amendment.
p. 2Test for allowing amendment of a Memorandum of Appeal
In the result, I allow the application. The applicant shall file and serve the amended Memorandum of Appeal (in the form of a supplementary record of appeal) within 14 days from the date of delivery of this ruling.
p. 3Final orders
Costs of the application shall abide by the outcome of the appeal.
p. 3Costs

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, "Kenya United Steel Company (2006) Limited v Ahmed & another (Civil Appeal (Application) E141 of 2022) [2024] KECA 1734 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 15th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1734/eng@2024-12-06

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