[2007] KECA 220 (KLR)
The Court held that a notice of appeal is a primary and elementary document in appellate proceedings and, as a matter of practice, is not amenable to amendment. The Court found that the applicant should have sought leave to withdraw or strike out the erroneous notice of appeal and then sought leave to file a fresh...
Source-derived case information.
- Citation
- [2007] KECA 220 (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 / Ruling on Application for Leave to Amend Notice of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Amendment of Pleadings, Notice of Appeal, Appellate Procedure
- 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 / Ruling on Application for Leave to Amend Notice of Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to permit amendment of a notice of appeal.
- 2 Whether the applicant should be granted leave to amend the notice of appeal by substituting the word 'Appeal' with 'Case'.
- 3 What is the proper procedure for correcting an error in a notice of appeal.
Ratio Decidendi
The Court held that a notice of appeal is a primary and elementary document in appellate proceedings and, as a matter of practice, is not amenable to amendment. The Court found that the applicant should have sought leave to withdraw or strike out the erroneous notice of appeal and then sought leave to file a fresh and correct notice. The application for leave to amend the notice of appeal was therefore rejected, and the Court dismissed the application with costs to the respondent.
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
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NYERI
CIVIL APPLICATION 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 at Nyeri (Khamoni, J) dated 16th March, 2006In 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