Njeru (Suing as Personal Representative of Njeru Nduati Rugendo) v Mbogo

to identify any genuine question of law warranting amendment, and the proposed amendment does not cure the fundamental defects in the Memorandum of Appeal; that the respondent stands to suer prejudice if leave is granted, as he will be compelled to continue defending an appeal which remains incompetent as a second appeal and whose proposed amendment serves only to prolong litigation; and that the applicant has not demonstrated that the application has been brought in good faith, that the amendment is necessary for the just determination of the appeal, or that it introduces proper questions of law as required in a second appeal. 5. When the application was called out for virtual hearing on 31st July 2026, learned counsel, Mr. Kimanzi, held brief for Ms. Mutegi, for the applicant while learned counsel, Mr. Ian Kiplimo held brief for Mr. Mugambi for the respondent. Both counsel entirely relied on their written submissions which I have considered. 6. That the Court has wide discretion in such matters is not in doubt. In law, the principles that guide courts when considering an application for amendment of pleadings are clear and these are that amendments to pleadings sought before hearing, should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs. See Eastern Bakery v Castelino (1958) EA 461. It must now be noted that the introduction of sections 3A and 3B of the Appellate Jurisdiction Act are in favour of facilitating the just, expeditious, proportionate and aordable resolution of matters governed by the Act and in handling matters before it, the Court ensures the just determination of the proceedings; the ecient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost aordable by the respective parties; and the use of available technology. However, the decision whether or not to allow amendment being an exercise of judicial discretion, like all other judicial discretions, must be exercised upon reason and not on any whims of the court nor capriciously. See Musamarini Limited & 6 Others v A.D.M. Limited & 5 Others [2011] eKLR. 7. In this case, the Memorandum of Appeal has already been led. The applicant contends that the said the Memorandum of Appeal omitted to include the prayers the applicant is seeking in the appeal and, further, it appears that the applicant is appealing on points of law and facts instead of points of law, which ought to be the position in a second appeal. I do not see how the respondent stands to be prejudice if the application is allowed. The mere fact that the applicant includes prayers in the Memorandum of Appeal does not take away the rights of the respondent to oppose the said prayers. It would be futile to proceed with the appeal without the prayers sought being set out in the Memorandum of Appeal. That would clearly be prejudicial to the applicant. 8. On the other hand, the amendment to delete the impression that the applicant is appealing on both facts and law is simply meant to clarify the grounds. Even without the amendments sought nothing bars the Court from considering those grounds only in so far as they address matters of law. In fact the respondent contends that the intended amendments are merely cosmetic. As for the delay, the appeal has not yet been set down for hearing hence no delay will be occasioned by the said “cosmetic amendments”. Regrading the contention that the amendment prejudices the respondent as the appeal remains incompetent, the respondent ought to have moved the Court to strike out the appeal is he believed that the appeal was incompetent. 9. In Tidesley v Harper, 10 Ch D 396, Bramwell, LJ said:“ My practice has always been to give leave to amend unless I have been satised that the party applying was acting mala de, or that by his blunder, he had one some injury to his opponent which could not be compensated for by costs or otherwise.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1899/eng@2026-09-25 2

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10. In Mwakio v Kenya Commercial Bank Ltd [1987] eKLR, it was held that the above dictum, typies the normal judicial approach if a court is prayed to grant leave to amend. On the facts of that case, the court opined that there was no basis for saying that in seeking to amend, the applicant was acting mala de. 11. I agree that it is in the interest of justice that the orders sought herein be granted. 12. Accordingly, while I grant leave to the applicant to amend the Memorandum of Appeal in the manner outlined in the draft Amended Memorandum of Appeal. Let the amended Memorandum of Appeal be led and served within 14 days. The costs of this application to be in the appeal. 13. It is so ordered. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. G. V. ODUNGA ……………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1899/eng@2026-09-25 3

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