Kenya United Steel Company (2006) Limited v Ahmed & another (Civil Appeal (Application) E141 of 2022) [2024] KECA 1734 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to amend the Memorandum of Appeal
- 2.Whether the delay in bringing the application should defeat it
- 3.Whether the respondents would suffer prejudice if the amendments were allowed
Key legal issues
#Whether the proposed amendments to the Memorandum of Appeal should be allowed
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.
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.
Whether the delay in making the application is fatal
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.
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.
Legal principles established
#- 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
#- 1.Leave to amend the Memorandum of Appeal granted
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
Costs of the application shall abide by the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.