Ndegwa & another v Khaemba & 3 others

**IN THE COURT OF APPEAL AT NAIROBI** **CORAM: OMONDI, JA, (IN CHAMBERS)) CIVIL APPEAL (APPLICATION) NO. E093 OF 2023** **BETWEEN** **MAINA NDEGWA 1ST APPLICANT** **ALICE NJOKI MAINA 2ND APPLICANT** **AND** **PATRICK SIMIYU KHAЕMBА 1ST RESPONDENT** **ROSE KABUTIA KHAEMBА …………………….. 2ND RESPONDENT ISHMAEL NYARIBO** **T/A I.N. NYARIBO ADVOCATES 3RD RESPONDENT** **THE COMMISSIONER FOR LANDS 4TH RESPONDENT** *(Being an appeal against the judgement of the Environment and Land Court at Nairobi (L. Komingoi, J.) dated 24th November, 2022* ***in*** **Case No. 576 of 2012)** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **RULING** 1. The Notice of Motion dated 2nd June, 2026, seeks that leave be granted to the Maina Ndegwa and Alice Njoki Maina, the appellants herein, to amend the record of appeal dated 15th May, 2023 so as to reflect the correct documents which were filed before the trial court, as some of the documents contained in the filed record are faint and contain markings which are inconsistent with the rules of this Court; and that costs of this application be in the appeal. The background to this application stems from a judgment delivered on 24th (Komingoi, J.), in November 2022, in Nairobi Environment and Land Case No. 576 of 2012 in favour Patrick Simiyu Khaemba and Rose Kabutia Khaemba, the 1st and 2nd respondents respectively. The applicants approached the Environment and Land Court (ELC) by an application dated 22nd December, 2022 seeking stay of execution of the Judgment pending lodging of the Appeal and leave to file the Notice of Appeal out of time; subsequently, on 17th January, 2023, the application came up for hearing and since it was unopposed, the Court directed the applicants to file the Notice of Appeal within seven (7) days, and with a conditional stay for one hundred and twenty (120) days, pegged to the applicants depositing security for costs in the sum of Kshs.800,000.00 (later revised to Kshs.300,000.00); and that the appeal (Memorandum and Record of Appeal) be lodged within one hundred and twenty (120) days that neither of the respondents herein contested or appealed against the said ruling and directions. 1. Ultimately, the applicants deposited the required security and filed the Memorandum of Appeal dated 16th February, 2023 and the record of appeal dated 15th May, 2023. Apparently, the record of appeal was filed 117 days after the delivery of the ruling; on successful lodging of this appeal, the stay issued by the Environment and Land Court lapsed, prompting the appellants to file the application before this Court dated 19th June, 2023, seeking stay of execution of the judgment of the Environment and Land Court pending the hearing and determination of the Appeal; the said application was duly heard and stay granted to the them on 1st November, 2023 through a Consent order. 1. The applicants acknowledge that the 1st and 2nd respondents herein have filed a Notice of Motion dated 12th January, 2026 seeking to have the record of appeal and consequently the Appeal struck out on grounds inter alia: 1. ***Failure to indicate the tenth line of the documents filed;*** 2. ***Filing documents otherwise marked with highlights and hand written notes; and*** 3. ***Filing documents within the Record, some of which were faint and fairly* hard to parse.** 2. The applicants defend their action in filing the present application saying that: ***“upon raising of the discrepancies by the 1st and 2nd respondents herein, that some of the documents inadvertently filed in the record contain markings made by the advocate who had had conduct of this*** ***matter previously; the advocate who had conduct of this matter of this matter, one Elna Mudibo, has since left the firm and the matter take up by the deponent of the Affidavits herein.”*** 1. The applicant maintains that the inadvertent errors are curable by grant of leave of to amend the Record of Appeal to reflect the original documents filed before the trial court, pursuant to Rule 46 of the Rules and that the mistake of Counsel in filing inadmissible documents ought not to be visited upon the litigants who have diligently pursued their right to have this appeal heard and determined on its merits. Further, that the applicants ought not to be prejudiced by having their Appeal struck out, on an error not within their control as they were not involved in the actual filing of the Record of Appeal, which process was evidently under the purview of the instructed Counsel. 2. The applicants maintain that no prejudice would be occasioned to the respondents if the leave sought is granted as that the proceeds of the rent from the leased suit property are held in an escrow account, which continues to earn interest and to which all Counsel in the matter are signatories to. 3. In opposing the application, the 1st and 2nd respondents vide a replying affidavit dated 13th July 2026, sworn by J.M. Kamenju, learned counsel appearing for the respondents, depose that prior to the filing of the present application, the respondents had already moved this Court by way of an application dated 12th January 2026 and filed on 22nd January 2026, seeking, inter alia, that the entire appeal be struck out for being fatally defective in law and disregarding the Court of Appeal Rules. 1. In their written submissions, the applicants rely on the case of ***Njiri and Another v Wangui and 2 others 2026] KECA 789 (KLR)*** to urge that the prayers be allowed in exercise of the Court’s unfettered discretion as unless it is demonstrated that the intention is mala fides or prejudicial to the other party. 2. The respondents on the other hand argue that the applicant lodged the record of appeal more than three years ago on 22nd January 2026, the respondent’s filed a motion dated 12th January 2026 seeking to strike out the record of appeal for being fatally defective, as the applicants had abrogated the Court of Appeal Rules in preparing the Record of Appeal; the said application was served on the present applicants, but instead of responding to the application dated 12th January 2026, the applicant’s in a bid to hurriedly amend the apparent errors on the Appeal, filed the instant application seeking leave to amend the Record. 1. It is thus contended that the application herein is an abuse of the Court process, obviously crafted to both directly and indirectly defeat the respondent’s application to strike out the appeal; that the applicants were at all material time aware of the respondent’s application having been duly served; that instead of filing a response to the respondent’s application as directed by the court, they have attempted to use the back door by filing this application. The respondents lament that the present application was not served on them, and they only learnt it a few hours to the hearing, while following up on the hearing date of the respondent’s application. 2. In this regard, the respondents refer to ***Quest Works Limited v Treboruamak Real Estate Investment Management Company Limited (Civil Application E242 of 2024) [2025]*** ***KECA 263 (KLR) (21 February 2025) (Ruling)****,* where this Court faced with a similar situation declined to grant favourable orders, observing that the application was not brought in good faith, having been filed after the directions to dispose of the matter were given by this Court. It is pointed out that the said record has been defective from its date of filing, and the applicants had not explained the over three (3) years delay in filing the application seeking to amend the record. The respondents poke holes at the attempt to explain the delay on account of counsel handling the matter having left the firm after appointment by the Director of Public Prosecutions, arguing that the Gazette Notice produced in respect of the appointment is dated 24th February 2026 yet the appeal was filed in 2023. 1. Further, that ***“the application does not highlight the specific pages of the record that are illegible neither have it attached the pages in the application that ought to be amended. Allowing such an application that has not been specifically pleaded shall open a flood gate of the Appellants introducing new pleadings due to the blanket application being allowed.”*** 2. I have considered the rival arguments presented, I have considered the grounds in support of the amendment as well as the rival arguments presented. Rule 46 (1) of the Court of Appeal Rules, 2022 which provides for amendment of pleadings as follows: 1. **Applications for leave to amend;** 1. **Whenever a formal application is made to the Court for leave to amend any document, the** **amendment for which leave is sought shall be set out in writing and,** * + - 1. **if practicable, lodged with the Registrar and served on the respondent before the hearing of the application or,** 2. **if that is not practicable, handed to the Court and to the respondent at the time of the hearing.** 1. **Where the Court gives leave for the amendment of a document, whether on a formal or an informal application, the amendment shall be made or an amended version of the document be lodged within such time as the Court when giving leave may specify and if no time is so specified, then within forty-eight hours of the giving of leave and on failure to comply with the requirements of this sub-rule, the leave so given shall determine**. 1. Whereas rule 46 does not state what the Court ought to consider before granting an amendment, it is not lost to me that discretionary power must be exercised judiciously dictated by reason rather than capriciously or arbitrarily. Indeed, this was succinctly expressed in and dictates of justice the case of ***Kanawal Sarjit Singh Dhim vs. Keshavji Jivraj*** ***Shah [2010]*** that: ***“The discretion to amend, like all discretions exercisable by the court, however wide or unfettered, must not be based on whim or caprice. It is a judicial process and must therefore be based on reason.”*** 1. Although the case of ***Joseph Ochieng & Others t/a Acquiline Agencies vs First National Bank of Chicago (Civil Appeal*** ***No. 147 of 1991) (UR)***, set out the principles to guide courts in applications for amendment of pleadings, I am persuaded that they offer a useful guide even for general amendments which are: 1. ***to determine the true substantive merits of the case;*** 2. ***the amendments should be timeously applied for;*** 3. ***power to amend can be exercised by the court at any stage of the proceedings;*** 4. ***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;*** 5. ***if an amendment would deprive the responding party of the right to rely on limitations Act subject however to powers of the court to still allow and amendment notwithstanding the expiry of current period of limitation.*** 6. I have considered the arguments here, there is no denying that prior to filing this application, the respondents had filed an application seeking to strike out the appeal on account of some ‘faulty’ documents. The applicants acknowledge as much; and do not deny that they did not timeously respond to that application. Instead, they have gone on a winding path regarding various procedural lapses, and how at each twist and turn, the court indulged favourably considered them. Unfortunately, what this lament does is merely to expose the applicants’ underbelly of laxity at best or indolence at worst. It is now apparent that the applicants have chosen to argue the application dated 12th January, filed by the respondents, in this instant application- that is a complete abuse of court process. 1. I concur with the respondents that the present application is reactionary to the respondent’s application seeking to strike out the suit and in any event, the application does not highlight the specific pages of the record that are illegible neither have the applicants attached the pages that ought to be amended. I agree that allowing such an application that has not been specifically pleaded will invariably open a can of worms and a flood gate of to introduce new pleadings. 2. I find that this application is mischievous and made in bad faith, consequently it is dismissed with costs to the respondents. **Dated and delivered at Nairobi this 11th day of September 2026.** **H.A. OMONDI** **………………………………… JUDGE OF APPEAL** *I certify that this is a true copy of the original.* **Signed** **DEPUTY REGISTRAR**