https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1650

Kayser Investment Ltd v Bamburi Special Products Ltd & 2 others (Civil Appeal (Application) E399 of 2021) [2026] KECA 1650 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1650 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E399 of 2021 JW Lessit, JA July 31, 2026 Between Kayser Investment Limited Appellant and Bamburi Special Products Limited 1st Respondent Kiriiyu Merchants Auctioneers 2nd Respondent Gikera & Vadgama Advocates 3rd Respondent (An application for leave to amend memorandum of appeal and file a further supplementary record of appeal from the Ruling and Order of the Environment and Land Court at Nairobi (L. Komingoi, J.) delivered on 15th October, 2020inE.L.C. Suit No. 534 of 2020.) Ruling 1.The applicant, Kayser Investment Limited, has by application dated 10th March, 2026, expressed to be brought under, inter alia, Rules 16, 46 and 88 of the Court of Appeal Rules, 2022 (Rules) seeks leave to amend the memorandum of appeal dated 7th July, 2021 as per the proposed amended memorandum of appeal attached to the application, and leave to file a further supplementary record of appeal to accompany the proposed amended memorandum of appeal; and costs of the application do abide the results of the appeal. 2.The application is uncontested. The respondents did not file any response to the application or submissions, despite service of a hearing notice upon their advocates on record via email on 26th May, 2026. Their advocates were notified that the application would be heard by way of written submissions on 2nd June, 2026 and parties urged to comply with directions issued with regards to service and filing of written submissions. 3.The application was canvassed by way of written submissions. The applicant filed its written submissions dated 28th May, 2026 and in it reiterated what it captured in its pleadings. The applicant emphasizes that the amendment is meant to bring in additional grounds and that the orders sought are necessary so as to assist this Court to determine fully all the matters in dispute arising from the impugned ruling of the trial court, and that no prejudice shall befall the respondents. 4.I have carefully considered the application, grounds in support thereof, applicant’s written submissions, as well as the applicable law. Rule 16 of the Rules provides the format amended documents should take once leave is granted by the Court to amend. Rule 46 of this Court Rules sets out the format an application for leave to amend document should meet. Rule 88 of the Rules on the other hand sets out the contents of an amended memorandum of appeal. The bottom line is that the rule recognizes that the Court can grant such application on terms deemed appropriate. 5.In the case of Eastern Bakery vs. Castelino [1958] E.A. 461, the predecessor of this Court espouses some of the principles to be taken into account when considering whether to allow an amendment of any pleadings as herein under:-“It will be sufficient, for the purposes of the present case, to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs…. The court will not refuse leave to allow an amendment simply because it introduces a new case…. But there is no power to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject matter of the suit… The court will refuse leave to amend where the amendment would change the action into one of a substantially different character; or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of a defence of limitation accrued since the issue of the writ.” [Emphasis added] 6.In Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, gives some insights on the amendments of pleadings:-“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.… The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…”See also Wareham t/a AF Wareham & 2 others vs. Kenya Post Office Savings Bank - Civil Appeal Nos. 5 & 48 of 2002. 7.I have considered the submissions by the applicant’s counsel, as well as the grounds upon which the amendment are sought and the explanations offered for the necessity to amend. The applicant deposed that it seeks to amend that memorandum of appeal to add some key grounds of appeal and reliefs for determination by this Court. The applicant explains that the grounds sought to be introduced were erroneously left out of the memorandum of appeal, and attributes the omission to an inadvertent drafting error when the memorandum of appeal was initially drafted. He avers that the omission was only discovered during the preparation of the appeal for listing for hearing following the compilation of the record of appeal. The applicant avers that the amendment is intended to assist the Honorable Court to holistically determine the issues raised and will not in any way prejudice the respondent as the appeal is yet to be heard. Lastly, the applicant avers that it has satisfied the requirements necessary for the grant of the orders to amend, noting that the memorandum of the appeal as lodged lacked the orders being sought. 8.I have also considered the draft amended memorandum of appeal. The suit from which the appeal arises challenged the auction of a property on the grounds it did not belong to the judgment debtor in HCCC 431 and 432 of 2014. Apparently the ELC dismissed an application seeking to stop the auction, thus the appeal. I have looked at the draft memorandum of appeal attached to the application. It proposes to add two paragraphs as follows: 5.That the learned Judge erred in law and in fact by dismissing the Appellants entire suit and thus dismissing the Appellant’s claim for malice, trespass, specific damages of Ksh.23,500,000/=, general damages, an order for permanent injunction for trespass and exemplary damages as prayed in the plaint. 6.That the learned Judge erred in law and in fact by dismissing the Appellant’s entire suit despite having jurisdiction over the suit and thus violating the Appellant’s fundamental rights to access to justice. 9.There are also proposed amended orders sought under the draft amended memorandum of appeal. Considering the proposed amendments, and the explanation offered by the applicant, I am satisfied that: the intended amendments do not introduce any new matter, but rather, I tend to agree with the applicant that there was failure to include the grounds sought to be introduced due to inadvertence. The applicants demonstrates that the trial Judge dismissed its suit at an interlocutory stage of the proceedings. The proposed amendments bring out that fact clearly. 10.I am satisfied that the proposed amendment will bring out the issues in controversy more clearly. I am satisfied that the applicant is deserving of the leave to amend sought. In the same vein, I do agree that the second order sought for leave to file a further supplementary record of appeal to accompany the proposed amended memorandum of appeal is, for the same reason merited, as it complements the amended memorandum of appeal. I do find that no prejudice will be suffered by the respondents. 11.The result of this application is as follows:1.The application dated 10th March, 2026 be and is hereby allowed as prayed.2.The applicant should file the amended memorandum of appeal and further supplementary record of appeal shall be filed within twenty-one (21) days from the date hereof and serve within 15 days from the date of filing.3.The costs will abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026J. LESIITJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR