Lekamario & 248 others v African Wildlife Foundation & another (Civil Appeal (Application) 181 of 2017) [2025] KECA 1106 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a land appellant add a historical-injustice claim on appeal because it was never raised in the original 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 proposed amendment to ground No. 7 of the memorandum of appeal introduces a new cause of action not pleaded, canvassed or determined at trial
- 2.Whether the amendment would prejudice parties who were not before the trial court, including Ol-Pajeta Ranching Limited and the National Land Commission
Key legal issues
#Whether an amendment to a memorandum of appeal introducing historical land injustices is permissible
The amendment was refused because it introduced a new cause of action never pleaded or litigated at trial and would affect non-parties such as the registered owner and the National Land Commission
The court applied the established guidelines from Securicor and KCB v Osebe: a new point on appeal must be consistent with the case as conducted at trial, must not raise disputes of fact, and must not require further evidence. A claim of historical injustices had to be separately and distinctly pleaded and responded to, and would condemn parties unheard, amounting to a travesty of justice.
Effect of the mixed-up and omnibus nature of the application
Although the application conflated Rule 31 (further evidence) with amendment of a memorandum of appeal and could have been struck out on that basis alone, the court elected to determine it on merit given the age of the appeal
The court noted the confusion between the rule invoked and the prayer sought had caused misplacement and delay. Rather than striking out the defective application, the bench chose to decide it on its merits in view of accusations of intentional delay, and ultimately found it lacked merit.
Legal principles established
#- A new point on appeal must arise from issues sufficiently pleaded, canvassed or succinctly made issues at the trial; a fresh cause of action cannot be introduced at appeal level
- The Court of Appeal is not a trial court and cannot canvass a fresh claim requiring further evidence
Court orders
#- 1.The application for leave to amend the memorandum of appeal is dismissed
- 2.Costs will abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (trial court inferred)
- Jurisdiction invoked
- Rule 31 of the Court of Appeal Rules was cited on the face of the application, though the court noted the application was in substance one for amendment of a memorandum of appeal, a single Judge application
Relief refused
#Leave to amend ground No. 7 of the memorandum of appeal to introduce the principle of security of land rights and historical injustices
The amendment sought to introduce a totally different cause of action not canvassed at trial and would affect parties not before the trial court
Costs
Costs will abide the 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.
Certainly, the cases show that the discretion must be exercised sparingly. The evidence must all be on record and the new point must not raise disputes of fact. The point must not be at variance to the facts or case decided in the court below.
Ultimately, our finding is that the intended amendment is intended to introduce a totally difierent cause of action. The issue of historical injustices was not before the trial court.
We need not say more. The application before us lacks merit and we dismiss it. Costs will abide the appeal.
Issues in the judgment
#The application was brought under Rule 31 of the Court of Appeal Rules (further evidence, a 3-judge bench application) while the prayer was for amendment of the memorandum of appeal (a single Judge application), a mix-up acknowledged by the court
The registered owner is referred to as 'Ol-Pajeta Ranching Limited' in one passage and 'Ol-Pajeta Farm Limited' in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lekamario & 248 others v African Wildlife Foundation & another (Civil Appeal (Application) 181 of 2017) [2025] KECA 1106 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1106/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.