Mburu t/a JM Mburu & Co Advocates v County Government of Mombasa; Malombo t/a OM Robinson & Co Advocates (Interested Party) (Civil Appeal (Application) 73 of 2019) [2025] KECA 56 (KLR)
The bottom line
#The Court of Appeal cannot amend pleadings filed in the High Court or grant judgment on admission mid-appeal, so litigants must perfect their claims before 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 the Court of Appeal has jurisdiction to allow amendment of pleadings (a constitutional petition) filed before the trial court
- 2.Whether judgment on admission for Kshs. 102 Million should be entered against the respondent pursuant to Order 13 Rule 2 of the Civil Procedure Rules, 2010
Key legal issues
#Whether pleadings filed before the trial court can be amended in the appellate court
No – the amendment jurisdiction under rule 46 applies to documents filed in the Court of Appeal, not the pleadings that founded the judgment under appeal
The authorities cited on amendment (Lilian Wanja, Kenya Hotels) concerned memoranda of appeal, which are documents first filed in the appellate court. The petition here was the foundation of the High Court judgment. Neither the rules of the Court nor the Appellate Jurisdiction Act permits an appellate court to amend trial pleadings; rule 18 of the Mutunga Rules empowers only the trial Judge while a matter pends in the High Court. Allowing the amendment would place new pleadings in the record that the trial court never considered, converting the appellate court into a trial court and relinquishing its appellate jurisdiction.
Whether judgment on admission could be entered for Kshs. 102 Million
Refused on three grounds – dependency on the failed amendment, absence of any enabling rule, and the single Judge's lack of power to determine the appeal
The prayer presupposed the amended petition pleading special damages, which failed. The applicant identified no rule of the Court supporting judgment on admission in an appeal. Most fundamentally, an order effectively settling the appeal would usurp the powers of the full Court, which alone may determine an appeal; a single Judge hearing an interlocutory motion cannot make such a final determination.
The discretionary nature and limits of the power to amend documents on appeal
The power to amend is discretionary and judicious; a totally new ground not pleaded or canvassed below will not readily be allowed
Drawing on Lilian Wanja Muthoni Mbogo and Kenya Hotels Ltd, the Court reaffirmed that amendment power must be exercised judiciously in the interest of justice, considering the nature and extent of the amendment. Where an entirely new point is sought, strictures prevent the appellate court from metamorphosing into a trial court without the input of the court below.
Legal principles established
#- The Court of Appeal has no power under rule 46 of the Court of Appeal Rules or rule 18 of the Mutunga Rules to amend pleadings that were filed before the trial court; amendment jurisdiction extends only to documents filed in the appellate court such as a memorandum of appeal
- A single Judge of Appeal cannot, on an interlocutory application, enter judgment on admission in a way that effectively determines the appeal; that power is reserved for the full Court
- An appellate court will not entertain matters raised for the first time on appeal unless they concern jurisdiction or illegality
Court orders
#- 1.The application for amendment of the petition filed before the High Court was dismissed as without merit
- 2.The prayer for entry of judgment on admission was refused
- 3.The notice of motion dated 23rd August 2024 was dismissed with costs to the respondent and the Interested Party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- HC Petition No. 4 of 2019 (John Mbau Mburu t/a J.M. Mburu & Company v County Government of Mombasa & Robinson Onyango Malombo t/a O. M. Robinson & Company, Advocates)
- Jurisdiction invoked
- Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; rule 44 (and rule 46) of the Court of Appeal Rules, 2022; sections 3(2), 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Leave to amend the petition in HC Petition No. 4 of 2019
The Court has no jurisdiction to amend pleadings filed in the trial court; allowing it would turn the appellate court into a trial court
Declaration that Kshs. 102 Million is admitted as owing and entry of judgment on admission
It was hinged on the failed amendment prayer, no rule of the Court supports it, and it would usurp the powers of the full Court
Costs
The notice of motion dated 23rd August 2024 is dismissed with costs to the respondent and the Interested Party
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.
In my view, allowing this request for amendment will turn this Court into a trial court.
I do not think that the jurisdiction under rule 46 extends to amendment of pleadings filed in the trial court.
Were the application for amendment to be allowed, it would amount to the Court relinquishing its appellate jurisdiction and taking over the role of the trial court. There is no constitutional or statutory basis for such a move.
In the end, the notice of motion dated 23rd August 2024 lacks merit and is hereby dismissed with costs to the respondent and the Interested Party.
Issues in the judgment
#Internal date inconsistency: the judgment is said to have been delivered on 20th December 2018, yet the petition is numbered HC Petition No. 4 of 2019, implying it was filed after that date
The motion invokes rule 44 of the Court of Appeal Rules for leave to amend, but the Court notes rule 44 concerns the form of applications and that the applicable provision is rule 46
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu t/a JM Mburu & Co Advocates v County Government of Mombasa; Malombo t/a OM Robinson & Co Advocates (Interested Party) (Civil Appeal (Application) 73 of 2019) [2025] KECA 56 (KLR)", Case Analysis (2025). Civil Appeal (application in pending appeal) – Notice of Motion dated 23rd August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/56/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.