[2007] KECA 145 (KLR)
The Court held that notices of appeal are fundamental documents in the appellate process and are not ordinarily amenable to amendment. The correct procedure for rectifying an error in a notice of appeal is to seek leave to withdraw or strike out the defective notice and then seek leave to file a fresh and correct...
Source-derived case information.
- Citation
- [2007] KECA 145 (KLR)
- Parties
- Applicant: Nanyuki Municipal Council; Respondent: Ephantus Kiruhi Kihuni
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 179 of 2007
- Procedural Posture
- Civil Application / Application for Leave to Amend Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Amendment of Notice of Appeal, Appeal Procedure, Court of Appeal Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nanyuki Municipal Council
Applicant
Ephantus Kiruhi Kihuni
Respondent
Procedural Posture
Civil Application / Application for Leave to Amend Notice of Appeal
Legal Issues
- 1 Whether the Court of Appeal can grant leave to amend a notice of appeal.
- 2 Whether the proper procedure for correcting an erroneous notice of appeal is by amendment or by withdrawal and filing afresh.
Ratio Decidendi
The Court held that notices of appeal are fundamental documents in the appellate process and are not ordinarily amenable to amendment. The correct procedure for rectifying an error in a notice of appeal is to seek leave to withdraw or strike out the defective notice and then seek leave to file a fresh and correct notice. The application to amend the notice of appeal was therefore rejected, and the applicant was directed to follow the proper procedure if it wished to correct the error.
Court Disposition
application dismissed with costs
Orders
- The application for leave to amend the notice of appeal is dismissed.
- The applicant shall pay the respondent's costs assessed at KES 1,000.00.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL OF KENYA AT NYERI Civil Appli 179 of 2007 (NYR 9/2007)
NANYUKI MUNICIPAL COUNCIL …………...……...…………….. APPLICANT
AND
EPHANTUS KIRUHI KIHUNI ………….………...…………….. RESPONDENT
(Application for leave to amend a notice of appeal in an intended appeal from a
judgment of the High Court of Kenya
Nyeri (Khamoni, J) dated 16th March, 2006
in
H.C.C.C No. 63 of 1997)
********************
R U L I N G
The applicant craves leave to amend its notice of appeal lodged in the superior court on 21st March, 2006 in respect of Nyeri H.C.C.C No. 63 of 1997 by substituting the second word “Appeal” in line 3 of the Notice of Appeal with the word “Case”.
I must say that this is one of the most rare applications to be filed in this Court, because Notices of Appeal being the most basic and elementary documents in an appeal are normally termed; and indeed, deemed primary documents which are not amenable to amendment.
In most cases this Court does not permit amendment of a notice of appeal.
The most obvious step that should have commended itself upon the applicant was to seek leave to withdraw the erroneous notice of appeal or to have it struck out and seek leave to lodge a fresh and correct one. I reject this application and I order that it be dismissed with costs to the respondent which I assess at Shs. 1,000/=.
Dated and delivered at Nyeri this 2nd day of November, 2007.
P.K. TUNOI
……………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR