[2004] KECA 50 (KLR)
The court held that the rules of the Court of Appeal do not prohibit the inclusion of an amended memorandum of appeal in a supplementary record of appeal. The memorandum of appeal is not classified as a primary document and, in the interests of justice, is always open to amendment. The court was satisfied that the...
Source-derived case information.
- Citation
- [2004] KECA 50 (KLR)
- Parties
- Appellant: Samuel Miki Waweru; Respondent: Jane Njeri Richu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 122 of 2001
- Procedural Posture
- Civil Appeal / Chamber Application Ruling on Interlocutory Motion
- Outcome
- Application allowed; prayers in the motion granted; costs in the appeal.
- Legal Topics
- Supplementary Record of Appeal, Amendment of Memorandum of Appeal, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Miki Waweru
Appellant
Jane Njeri Richu
Respondent
Procedural Posture
Civil Appeal / Chamber Application Ruling on Interlocutory Motion
Legal Issues
- 1 Whether an amended memorandum of appeal may be included in a supplementary record of appeal under the Court of Appeal Rules.
- 2 Whether a memorandum of appeal is a primary document and if it is amenable to amendment.
Ratio Decidendi
The court held that the rules of the Court of Appeal do not prohibit the inclusion of an amended memorandum of appeal in a supplementary record of appeal. The memorandum of appeal is not classified as a primary document and, in the interests of justice, is always open to amendment. The court was satisfied that the application met the requirements for the orders sought and accordingly granted the prayers in the motion dated 1st October, 2003. Costs of the application were ordered to be in the appeal.
Court Disposition
Application allowed; prayers in the motion granted; costs in the appeal.
Orders
- The prayers sought in the Motion dated 1st October, 2003 are granted.
- Costs occasioned by the application shall be in the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: TUNOI, J.A (IN CHAMBERS)
CIVIL APPEAL NO. 122 OF 2001
BETWEEN
SAMUEL MIKI WAWERU ………………..…………………………………..APPELLANT
AND
JANE NJERI RICHU ………………………………………………………..RESPONDENT
RULING
Having heard the submissions of Mr. Khawaja in support of the application and those of Mrs. Wanyaga in opposition thereto, I am satisfied that I should grant the prayers sought in the Motion dated 1st October, 2003, and I do so. The costs occasioned by the application shall be in the appeal.
Rule 85 (2A) does not prohibit the inclusion of an amended memorandum of appeal in a supplementary record of appeal under rule 89(3). See Malindi Air Services Limited v. CMC Aviation Limited Civil Appeal No. 105 of 1999 (Mombasa) (unreported).
Furthermore, a memorandum of appeal is not a primary document and subject to the interests of justice, is always amenable to amendment. See Uhuru Highway Development Limited v. Central Bank of Kenya (2002) 1 A E A 314 (unreported).
Dated and delivered at Nairobi this 10th day of March, 2004.
P.K. TUNOI ……………… JUDGE OF APPEAL
I certify that this is a true copy
of the original.
DEPUTY REGISTRAR