Mbugua v Njenga & another (Civil Appeal (Application) E865 of 2025) [2026] KECA 1527 (KLR) (31 July 2026) (Ruling)

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: LESIIT, JA. (IN CHAMBERS)) CIVIL APPEAL (APPLICATION) NO. E865 OF 2025** **BETWEEN** **GEORGE K. N. MBUGUA APPLICANT** **AND** **FRANCIS KIBATHI NJENGA…….……………..…..1ST RESPONDENT EMBAKASI RANCHING COMPANY LIMITED…..2ND RESPONDENT** *(Being an application for leave to amend Memorandum of Appeal from the Ruling of the Environment and Land Court at Nairobi (J.G. Kemei, J.) delivered on 29th May, 2025* ***in*** ***E.L.C NO. 108 of 2013.)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING** 1. The applicant, **George K. N. Mbugua**, by an application dated 21st November, 2025 brought pursuant to rule 46(a) of the Court of Appeal Rules, 2022 seeks, *inter alia,* orders that pending the taking directions, the applicant be allowed to amend the memorandum of appeal dated 16th October, 2025 to correct a typing error and/or omission. 2. The memorandum of appeal is in regard to an appeal from the ruling of the Environment and Land Court at Nairobi (Kemei, J.) delivered on 29th May, 2025 in ELC No. 108 of 2013. The application is supported by the grounds on the face of it and in the affidavit in support thereof by Solomon Wamwayi, Advocate, sworn on even date. 1. The intended amendment seeks to amend paragraph 5 of the initial memorandum of appeal to correct the year 202 to read 2025. The appellant avers that the omission was a typing error that it does not alter the substance of the appeal. Further, that the amendment shall not in any way occasion any prejudice to the respondents. 2. The respondents have not filed their response to the application however, the 1st respondent filed his written submissions. A hearing notice was served on all parties by this Court’s registry via email on 26th May, 2026 at 10.17 a.m. notifying them of the hearing date through written submissions, and reminding them to comply with the directions issued to serve and file their respective submissions prior to the date of hearing. 3. The application was canvassed by way of written submissions. In his written submissions dated 26th March, 2026 the applicant dwelt on matters of the appeal which are irrelevant at this stage. However, at the second last paragraph of his submission, the applicants urges that he served the application upon the respondents and it being unopposed, this Court should allow it. 4. The 1st respondent in his written submissions dated 15th December, 2025 makes a reply to the memorandum of appeal dated 16th October, 2025 and says nothing at all with regard to the application, whether he opposes or not the application to amend the memorandum of appeal. 1. I have carefully considered the application, grounds in support thereof, written submissions by the applicant and the 1st respondent, as well as the applicable law. 2. Granting orders of leave to amend a memorandum of appeal is discretionary in nature however, I am live to the fact that the said unfettered discretion is not to be based on whim or caprice and that I should be backed up by reason. Rule 46 provides for applications for leave to amend a document, and in the instant application, the document that the applicant seeks to amend is the memorandum of appeal. 3. **Rule 46** states as follows; **“(1) Whenever a formal application is made to the Court for leave to amend a document, the amendment for which leave is sought shall be set out in writing and –** * 1. **if practicable, lodged with the Registrar and served on the respondent before the hearing of the application; or** 2. **if it is not practicable to lodge the document with the Registrar, handed to the Court and to the respondent at the time of the hearing.”** 1. In ***Kanwar Sarjit Singh Dhiman vs. Keshvji Jivraj Shah* [2010] KECA 149 (KLR)** this Court quoted with approval the case of ***Uhuru Highway Development Ltd vs. Central Bank of Kenya* [2002] 1 EA 314** which held that memorandum of appeal is not a primary document but a creation of the party appealing hence, subject to the interest of justice, is always amenable to amendments. 1. The proposed amendment is on paragraph 5 of the memorandum of appeal dated 16th October, 2025. On the face of the Motion, the applicant proposes to correct the year captured as 202 in the original memorandum of appeal to read 2025. The applicant urges that the mistake was a typing error and thus the need to have it amended. The paragraph reads as follows; **“5. The learned judge erred in fact and law in failing to appreciate that on 2nd December 2019 Eboso,** **J. adjourned the case to 25th May 202 for hearing a date which there was no court session.”** 1. I have perused the proposed amended memorandum of appeal annexed to the application and note the applicant has inserted year 2020 as the proposed corrected date, as opposed to year 2025 as captured on the face of the Motion and in the supporting affidavit. I went further to peruse the proceedings of the trial court of 2nd December, 2019 and confirmed that the hearing of the applicant’s matter was adjourned to 25th May, 2020 and not the year 2025.The applicant made a mistake of the year proposed to be inserted in place of ‘202’, proposing the corrected year should read 2025. 2. The annexed amended memorandum correctly captured the proposed amendment as 2020. The amendment will be made in accordance to what is indicated in the proposed amended memorandum of appeal, and not the tear indicated in the affidavit in support and on the face of the motion. 1. I have considered the amendment proposed to be made and find that the error involved is typographical in nature and does not alter the substance of the appeal, I find there will be no harm in granting the orders as sought. Further, I find that no prejudice will be occasioned to the respondents, if the order sought is granted. 2. In the result I make the following order: 3. **I find that the application dated 21st November, 2025 is merited and is hereby allowed;** 4. **The applicant shall file the amended memorandum of appeal within twenty one days of date of this ruling, and serve the respondent within 14 days of the date of filing of the amended memorandum of appeal;** 5. **There shall be no orders as to costs.** **Dated and delivered at Nairobi this 31st day of July, 2026** **J. LESIIT** **………………….…………… JUDGE OF APPEAL** *I certify that this is a true copy of the original* *Signed* **DEPUTY REGISTRAR**