[2022] KEHC 13548 (KLR)

KIKM & DAAM (Suing through their mother and guardian ad litem FCK) v DMN (Civil Appeal 84 of 2016) [2022] KEHC 13548 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13548 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 84 of 2016

EKO Ogola, J

October 3, 2022

Between

KIKM & DAAM

Applicant

Suing through their mother and guardian ad litem FCK

and

DMN

Respondent

Ruling

1. Before me for determination is the notice of motion application dated May 27, 2021 in which the applicant seeks the following orders:1. Spent.2. That this honourable court be pleased to grant leave to the appellant to amend her memorandum of appeal dated May 27, 2016 in the terms suggested in the draft annexed amended memorandum of appeal.3. That the annexed amended memorandum of appeal be deemed duly filed upon payment of requisite fees.

2. The application is premised on the following grounds:a.That directions on this appeal were given on October 13, 2020 as provided for by the law.b.That hence according to the law, leave had to be granted to amend the memorandum of appeal which leave the appellant/applicant hereby seeks via this application.c.That the applicable law also allows amendment of pleadings at whichever stage of proceedings with leave of court.d.That a new issue has arisen which issue is pertinent to include as grounds of appeal to enable court duly determine the issues of controversy in this suit.

The Applicant’s Case 3. The application is further supported by the affidavit of FCK sworn on May 19, 2021 in in which she deposed that she is the biological mother of KKIM and DAAM, born as a result of her union with DMN, the respondent herein. She further deposed that at the trial court in Eldoret Children’s Case No 206 of 2015, the court gave them joint custody of their children, which custody the respondent has never allowed her to enjoy.

4. The applicant’s case is that on or about February 25, 2019 to on or about February 25, 2020, the minors lived with their father and that during the aforesaid period, the respondent sexually assaulted KIKM and is currently being charged with two counts of sexual assault in Eldoret CMCC No 26 of 2020 (Republic v DM). She argues that the prosecution case is pending in court and the minor has already tendered her evidence to that effect.

5. According to the applicant, since the main issue of contention is the custody of the minors herein, the character of the respondent is a noteworthy issue that ought to be brought to the attention of this court so as to enable the court determine the matter.

6. That applicant argues that the law allows pleadings to be amended at any stage of the proceedings. in light of directions having already been given in the instant appeal, the applicant seeks leave of court to amend the memorandum of appeal already on record.

7. The applicant argues that the law provides that in all matters of children, the best interests of a child shall be of paramount consideration.

The Respondent’s Case 8. The application is opposed by DMN who relied on his replying affidavit date June 8, 2021. He deposed that the application is baseless and unmerited. He contends that this appeal relates to the judgment delivered by the trial court May 6, 2016 and that the amendments can only be done of the memorandum of appeal if they are in relation to the said judgment. That the memorandum of appeal cannot be amended to introduce matters that were not before the trial court. The respondent further contends that the judgment in trial court was delivered in 2016 and the applicant cannot seek to amend the memorandum of appeal on the basis of events alleged to have occurred about (4) years later.

9. The respondent maintains that this instant application is an abuse of court process and that the applicant is not keen on prosecuting the appeal.

10. According to the respondent the minor in question has denied being sexually assaulted by him.

11. The application was argued orally in court.

Determination 12. Order 42 rule 3 of the Civil Procedure Rules 2010 and which is the law upon which the application is premised provides as thus: -Order 42, Rule 3. Amendment of memorandum of appeal. 3. (1)The appellant may amend his memorandum of appeal without leave at any time before the court gives directions 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.

13. A memorandum of appeal is a pleading like any other and the rules that apply to amendment of pleadings also apply to a memorandum of appeal. In Uhuru Highway Development Ltd v Central Bank of Kenya (2002) 1 EA 314 the Court of Appeal held that

14. “a memorandum of appeal, subject to the interests of justice, is always amenable to amendment”.

15. Further order 8 rule 3 of the Civil Procedure Rules 2010 provides that: -“Subject to order 1, rules 9 and 10, order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as may direct, allow any party to amend his pleadings.”

16. The Court of Appeal in Central Kenya Limited v Trust Bank limited (2000)2 EA 365 in determining an application to amend a memorandum of appeal held that: -“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”

17. It is trite also that applications seeking amendments of pleadings ought to be brought within reasonable time. In Kyalo v Bayusuf Brothers Ltd Civil Appeal No 38 of 1983, it was held that applications for amendment of pleadings should only be allowed if they are brought within a reasonable time because to allow a late amendment would amount to an abuse of the court process.

18. The main issue for consideration in this application is therefore, whether the above parameters have been satisfied such as to justify the exercise of the court’s discretion in granting leave for the amendment of the memorandum of appeal as requested.

19. I have carefully perused the application, the affidavits and the oral submissions by the parties. I find that the new issues intended to be raised in the amended memorandum are all issues of law based on an ongoing case in Eldoret CMCC No. 26 of 2020 (Republic vs DM) in which the Respondent has been charged with sexual assault of one of the minors herein.

20. While appreciating that a child’s interest is of paramount importance in matters touching on children, it is worth noting that it would be premature at this stage to amend the appeal as the Respondent is yet to be proved guilty of sexual assault. It would therefore be unfair to amend the appeal on the basis that the Respondent is facing charges of sexual assault that he is yet to be convicted of. To my mind, the Respondent is still innocent until proved otherwise.

21. In the end I find no merit in application dated 27/5/2021 and I hereby accordingly dismiss it.

22. Parties to bear own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 3RD OF OCTOBER 2022. E. K. OGOLAJUDGE