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Court of AppealAllowedNot stated in the judgment

Nanchang Foreign Engineering Company (Kenya) v Straight Security Limited (Civil Appeal (Application) E998 of 2024) [2026] KECA 561 (KLR)

Court of Appeal of Kenya
13 March 2026
NNNduma Nderi
1,004 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 party to amend its appeal to raise an overlooked payment, confirming courts freely permit amendments absent real prejudice.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (Nduma Nderi, JA) on a Notice of Motion dated 24th June 2025 brought under Rule 44 of the Court of Appeal Rules, 2022, seeking leave to amend a Memorandum of Appeal dated 6th September 2024. The appellant sought to introduce a ground that both the High Court and the Magistrate's Court erred in failing to recognize and offset Kes. 232,491/- paid in partial settlement of the debt, an omission said to have inflated the quantum awarded. The application was supported by an affidavit of Ding Jianghua, a director of the appellant, and by written submissions relying on Eastern Bakery v Castelino, George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd, Kenya Hotels Limited v Oriental Commercial Bank Limited and Central Bank of Kenya Ltd v Trust Bank Ltd. The respondent, though served, filed no response. Applying the settled principles that amendments should be freely allowed at any stage unless they cause prejudice not compensable by costs, the court found the amendment introduced no new cause of action and did not alter the subject matter of the appeal, the omission was inadvertent, and no prejudice was demonstrated. The motion was allowed, with leave to amend in terms of the draft annexed, the amended Memorandum of Appeal to be filed and served within seven days, and costs of the application to abide the outcome of the appeal. This ruling does not disturb any decision below; it is interlocutory, on procedure only.

Questions the Court framed

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

  1. 1.Whether the appellant should be granted leave to amend its Memorandum of Appeal to introduce a ground on non-recognition and non-offset of Kes. 232,491/- paid in partial settlement of the debt
  2. 2.Whether the amendment would prejudice the respondent

Key legal issues

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01

Whether leave to amend the Memorandum of Appeal should be granted

Holding

The application was allowed because the amendment introduced no new cause of action, did not alter the subject matter, the omission was inadvertent, and no prejudice was demonstrated by the unopposing respondent.

Reasoning

The court applied the settled principles for amendment of pleadings: amendments should be freely allowed unless they cause uncompensable prejudice. The proposed ground on set-off of Kes. 232,491/- concerned quantum already in issue and was necessary for just determination of the appeal. The respondent filed no response, and any prejudice could be compensated by costs.

p. 3

Legal principles established

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  • All amendments should be freely allowed at any stage of proceedings provided they do not result in prejudice or injustice to the other party which cannot be compensated by costs.
  • Amendments sought before hearing should be freely allowed if they can be made without injustice to the other side; injustice cannot be claimed if it can be compensated by costs; but amendments should not be permitted where they substitute a distinct cause of action, change the subject matter of the suit, or prejudice accrued rights such as limitation.

Court orders

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  1. 1.The appellant's Notice of Motion dated 24th June 2025 is allowed
  2. 2.Leave granted to amend the Memorandum of Appeal dated 6th September 2024 in terms of the draft annexed to the application
  3. 3.The amended Memorandum of Appeal to be filed and served within seven (7) days
  4. 4.Costs of the application to abide the outcome of the appeal

The bench

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

NN
majority

Wrote the judgment

Jurisdiction invoked
Rule 44 of the Court of Appeal Rules, 2022

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.

The amendment is necessary for the just determination of the appeal, will not prejudice the respondent, and is consistent with the principles of substantive justice.
p. 3test for amendment of memorandum of appeal
This amendment does not introduce a new cause of action, nor does it alter the subject matter of the appeal.
p. 2scope of permissible amendment
Accordingly, the appellant’s Notice of Motion dated 24th June 2025 is hereby allowed. The appellant is granted leave to amend its Memorandum of Appeal dated 6th September 2024 in terms of the draft annexed to the application.
p. 3final orders
The amended Memorandum of Appeal shall be filed and served within seven (7) days from the date hereof, and costs of the application shall abide the outcome of the appeal.
p. 3final orders on filing and costs

Issues in the judgment

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minor

The judgment is dated '13TH DAY OF MARCH 2026' in the delivery clause, yet the application is dated 24th June 2025 and submissions dated 16th July 2025; the delivery date falls after those dates and so is internally consistent, but the parties' names, appeal number and lower court details are not stated in the certified copy provided.

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, "Nanchang Foreign Engineering Company (Kenya) v Straight Security Limited (Civil Appeal (Application) E998 of 2024) [2026] KECA 561 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/561/eng@2026-03-13

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