https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9635

Energy & Petroleum Regulatory Authority v Karimi & 2 others (Civil Appeal E659 of 2024) [2026] KEHC 9635 (KLR) (Civ) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9635 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E659 of 2024 WA Okwany, J July 2, 2026 Between Energy & Petroleum Regulatory Authority Applicant and Cyrus Gatimu Karimi 1st Respondent George Kiragu Ndegwa 2nd Respondent Providence Hub Enterprises Limited 3rd Respondent Ruling 1.The Appellant filed the Notice of Motion dated 1st September 2025 under Order 42 Rule 3(2), Sections 1A, 1B and 3A of the Civil Procedure Act seeking, principally, leave to amend its Memorandum of Appeal dated 31st May 2024. 2.The application is supported by the affidavit sworn on behalf of the Appellant and the written submissions dated 24th November 2025. 3.The 1st Respondent opposed the Application through a Replying Affidavit sworn on 5th November 2025 and written submissions dated 27th November 2025. The 2nd and 3rd Respondents did not oppose the application. 4.The Application was canvassed by way of written submissions which I have considered. The Applicant’s Submissions 5.The Appellant submitted that the proposed amendment merely amplifies and clarifies the grounds already contained in the Memorandum of Appeal and seeks to introduce no new cause of action. It argued that Order 42 Rule 3(2) expressly permits amendment with leave of the Court after directions and that the amendment is necessary for the just determination of the appeal. 6.The Appellant relied on Kanwal Sarjit Singh Dhiman vs. Keshavji Jivraj Shah [2010] KECA 149 (KLR), Uhuru Highway Development Ltd vs. Central Bank of Kenya [2002] 1 EA 314, Mbeta vs. Ongong'a [2025] KEHC 7589 (KLR) and Rai & 3 Others vs. Rai & 4 Others [2014] KESC 31 (KLR) to submit that amendments should generally be allowed where they facilitate determination of the real issues in controversy and occasion no prejudice incapable of compensation by costs. 7.The 1st Respondent opposed the application on the ground that it has been brought after the Record of Appeal had already been filed and served. It was submitted that the Applicant has failed to explain the delay, that the proposed amendments introduce no substantial issues and are unnecessary, repetitive and intended merely to fill gaps in a weak appeal. The Respondent further contended that allowing the application would prejudice him by reopening issues already settled and delaying the hearing of the appeal. 8.The Respondent relied on Kanwal Sarjit Singh Dhiman vs. Keshavji Jivraj Shah (supra), Kyalo vs. Bayusuf Brothers Ltd Civil Appeal No. 38 of 1983, and KIKM & DAAM (Suing through their mother and guardian ad litem FCK) vs. DMN [2022] KEHC 13548 (KLR). Analysis and Determination 9.I have considered the application and the parties’ submissions. I find that the issues falling for determination are:a.Whether the Applicant has satisfied the conditions for leave to amend the Memorandum of Appeal.b.Whether the proposed amendment will occasion prejudice to the Respondents.c.Who should bear the costs of the application. Leave 10.Order 42 Rule 3 of the Civil Procedure Rules provides as follows:(1)The appellant may amend his memorandum of appeal without leave at any time before directions are given under Rule 13.(2)After the time limited by sub-rule (1), the Court may, on application, permit the appellant to amend his memorandum of appeal. 11.The rule therefore confers a discretionary jurisdiction upon the Court. 12.The applicable principles governing amendments are now well settled. In Eastern Bakery vs. Castelino [1958] EA 461, the predecessor of the Court of Appeal held that amendments sought before hearing should freely be allowed if they can be made without injustice to the opposite party and if any prejudice can adequately be compensated by costs. 13.Similarly, in Central Kenya Ltd vs. Trust Bank Ltd & 5 Others [2000] eKLR, the Court reiterated that amendments should ordinarily be allowed where they are necessary for determining the real questions in controversy, provided they do not occasion injustice incapable of compensation. 14.In Kanwal Sarjit Singh Dhiman vs. Keshavji Jivraj Shah [2010] KECA 149 (KLR) the Court of Appeal specifically addressed amendment of memoranda of appeal and held that a memorandum of appeal is not one of the primary documents constituting the record of appeal and is therefore amenable to amendment, subject always to the interests of justice. The Court emphasized that the discretion to allow amendment must be exercised judicially and not capriciously. 15.I have perused the proposed amended Memorandum of Appeal that the Applicant annexed to the application and upon comparison with the original Memorandum, I note that the amendments largely expand, clarify and particularize the existing complaints against the judgment of the trial court. In other words, the amendments do not introduce an entirely new cause of action nor alter the substratum of the appeal. 16.I therefore find that even though the application has been brought after filing of the Record of Appeal, the delay alone is not a sufficient ground for refusing amendment where no irremediable prejudice is demonstrated. Prejudice 17.The 1st Respondent contended that allowing the amendment will delay disposal of the appeal and reopen settled issues. 18.My finding is that while delay is undoubtedly undesirable, I am not persuaded that the prejudice complained of is one that is incapable of remedy. I say so because the appeal has not yet proceeded to substantive hearing. This means that the Respondents still retain the full opportunity to file supplementary responses or submissions addressing the amended grounds of appeal. 19.My further finding is that the proposed amendments do not deprive the Respondents of any accrued defence nor do they fundamentally alter the nature of the dispute. I am guided by the observations made in Mbeta vs. Ongong'a [2025] KEHC 7589 (KLR) where it was held that the principal considerations are whether the amendment is relevant to the issues in dispute and whether it occasions prejudice incapable of compensation. 20.I find that any inconvenience occasioned by the amendment can adequately be compensated through an award of costs. Costs 21.Costs are in the discretion of the Court under Section 27 of the Civil Procedure Act. 22.Given that the application has necessitated opposition by the 1st Respondent, and considering the delay in bringing the application, the appropriate order is that the costs of the application shall abide the outcome of the appeal. 23.Having regard to the findings and observations that I have made in this ruling, I find that the instant application is merited and I therefore allow it in the following terms: -a.The Notice of Motion dated 1st September 2025 is allowed.b.Leave is hereby granted to the Appellant to amend and file the Amended Memorandum of Appeal in the form annexed to the application, or in substantially similar terms, within seven (7) days from the date hereof.c.The Respondents shall be at liberty, if they deem necessary, to file supplementary responses and/or submissions within fourteen (14) days after service of the amended Memorandum of Appeal.d.The Record of Appeal shall stand amended accordingly upon filing and service of the Amended Memorandum of Appeal.e.The costs of this application shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JULY 2026.HON. W. A. OKWANYJUDGEIn the presence ofWaithaka for Ms Bulut for Appellant/ApplicantMs Swaka for Kirimi for 1st RespondentMs Wekesa for 2nd and 3rd RespondentsAbdirzak – Court Assistant