Patrick Kithinji Matumbi v Monica Rigiri Kanga
The bottom line
#A Kenyan court refused to let an appellant add new-evidence grounds to his appeal, ruling that documents never presented at trial cannot support an appeal.
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 application meets the criteria upon which the court exercises jurisdiction to grant an appellant leave to amend a memorandum of appeal
Key legal issues
#Whether leave to amend a memorandum of appeal should be granted where the intended amendments rely on documents not tendered at trial
The application was dismissed; amendments founded on evidence never presented to the trial court are not legitimate grounds of appeal
The court applied the general principles on amendment of pleadings: amendments are allowed at any stage if they occasion no injustice or prejudice, and prejudice curable by costs does not bar amendment. However, the intended grounds attacked the trial court for failing to evaluate documents (Land Control Board consent, transfer documents, title) that were admittedly never presented at trial. Since a trial court cannot be blamed for not considering evidence never tendered, the proposed grounds were not legitimate and the amendment failed.
Whether alleged discovery of new evidence justifies amendment of a memorandum of appeal
No; new evidence is not a ground for amending a memorandum of appeal
The court held that the proper avenue for new evidence is not amendment of the memorandum of appeal. The respondent had pointed out that the appellant never moved the trial court to introduce the alleged new evidence. The court reasoned that the trial court cannot be faulted for failing to evaluate evidence that was never before it, so grounds premised on such documents cannot legitimately be introduced on appeal.
Legal principles established
#- The power to grant an appellant leave to amend a memorandum of appeal is conferred by Order 42 rule 3(2) of the Civil Procedure Rules
- Discovery of new evidence cannot be a ground for amending a memorandum of appeal because the trial court cannot be faulted for not considering evidence never tendered
Court orders
#- 1.The notice of motion dated 21/4/2026 seeking leave to amend the memorandum of appeal is rejected and dismissed for lack of merit
- 2.The appellant shall bear costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 rule 3(2) of the Civil Procedure Rules
Relief refused
#Leave to amend the memorandum of appeal to include a prayer for remission to the trial court for retrial and new grounds of appeal
The proposed grounds rely on evidence never tendered before the trial court; discovery of new evidence is not a ground for amending a memorandum of appeal
Costs
The appellant shall bear costs of the application
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.
As a general principle on amendment of pleadings, courts will normally allow amendment of pleadings at any stage of the proceedings if the amendment can be done without occasioning injustice or prejudice to the other party.
the alleged discovery of new evidence cannot be a ground for amending a memorandum of appeal. I say so because the trial court cannot be blamed for failure to consider or evaluate evidence that was never tendered before it.
The result is that the application is rejected and dismissed for lack of merit.
In line with the general principle, costs follow the event. Consequently, the appellant shall bear costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kithinji Matumbi v Monica Rigiri Kanga", Case Analysis (2026). ELCL APPEAL CASE NO. E002 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5950/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.