https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6694

Mwamba & another v Nguwa (Civil Appeal E083 of 2025) [2026] KEHC 6694 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6694 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E083 of 2025 M Thande, J May 15, 2026 Between Japhet Mbajo Mwamba 1st Appellant Josephat Mwamba 2nd Appellant and Kennedy Gona Nguwa Respondent Ruling 1.By an Application dated 6.9.25, the Appellants seek variation of the directions issued on 12.8.25 on filing of submissions pending the hearing and determination of the Application. The Appellants also seek leave to amend their memorandum of appeal dated 10.7.25 in terms of the draft amended memorandum of appeal. 2.The grounds upon which the Application is premised are that there was failure to plead a material ground on the question of liability. The Appellants urged that there is need to amend the memorandum of appeal before the filing of submissions. Further, that it is imperative that amendment be allowed in order to bring relevant grounds before Court for a just and conclusive determination of the issues. The Appellants further stated that the delay in seeking amendment was inadvertent and that mistake of an advocate should not be visited on an innocent litigant. Additionally, that by allowing the amendment, no prejudice will be occasioned on the Respondent. 3.The Respondent opposed the application through a replying affidavit sworn on 22.9.25 by his counsel, Geoffrey Kilonzo. He averred that the Application lacks merit and is an afterthought; that it is an abuse of the court process and brought in bad faith after inordinate and unreasonable delay; that the Appellants are indolent and failed to move court in time despite being aware of the discrepancies in the memorandum of appeal; that the amendment sought are time barred and the Appellants have not sought leave to appeal out of time nor explained the delay in filing the present Application; that the memorandum of appeal was filed on 15.7.25 and directions thereon issued on 12.8.25 but the Appellants waited until 5.9.25, a few days to the date for compliance, to move the Court; that the purpose of litigation procedures and timelines is to ensure expeditious administration of justice; that the Appellants ignored the same and have not satisfactorily demonstrated why the Court’s directions should be varied. The Respondent urged that the Application be dismissed with costs. 4.Order 42 Rule 3 of the Civil Procedure Rules makes provision for amendment of a memorandum of appeal as follows: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 subrule (1) the court may, on application, permit the appellant to amend his memorandum of appeal. 5.The law envisages that there will be need for amendment of a memorandum of appeal. Such amendment may be done at any time without leave, where directions are yet to be given. After directions have been given, an appellant must apply to be permitted to amend the memorandum of appeal. The law does not stipulate the time within which an application for amendment may be made. 6.The circumstances herein are that the memorandum of appeal was filed on 15.7.25. Directions under Order 42 Rule 13 were given on 12.8.25. The Application was filed on 6.9.25, less than 2 months after the memorandum of appeal was filed. 7.It is trite that an application for amendment may be made at any stage of the proceedings. This was the holding in Central Kenya Ltd. v Trust Bank Ltd. (2000) 2 EA 365 where the Court of Appeal stated:Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs. 8.Given that no timelines have been set by the law within which to file an application for amendment, it cannot be said that there was delay. In any event, the general rule is that however late amendment is sought, the same should be allowed, if made in good faith. Any prejudice or injustice that may be occasioned to a respondent may be properly compensated by way of costs. 9.In Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] KECA 345 (KLR), the Court of Appeal stated:The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob's Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows:-“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.” 10.In the instant case, the Appellants’ seek to amend the memorandum of appeal to include a ground on the issue of liability. This amendment, in my view, will facilitate the determination with finality, of the real question in controversy between the parties herein. There is no evidence that the amendment has been sought in bad faith. Further, it has not been demonstrated to the Court that any prejudice will be suffered by the Respondent if the amendment is allowed. In any event, any prejudice that may be occasioned may be adequately compensated by way of costs. 11.I accordingly allow the Application dated 6.9.25 on terms that the amended memorandum of appeal shall be filed and served by 22.5.26. Mention for compliance on 28.7.26. The Respondent shall have costs. DATED, SIGNED AND DELIVERED IN MALINDI THIS 15TH DAY OF MAY 2026M. THANDEJUDGE