Lomul v Samati & another (Environment and Land Appeal 1 of 2023) [2023] KEELC 22614 (KLR) (19 October 2023) (Ruling)
Neutral citation:
[2023] KEELC 22614 (KLR)
Republic of Kenya
Environment and Land Appeal 1 of 2023
L Waithaka, J
October 19, 2023
Between
Paul Kiptui Lomul
Appellant
and
Boniface Kipkemboi Samati
1st Respondent
Grace Chepkurui Chesang
2nd Respondent
Ruling
1.The application for consideration is dated 7th July 2023 brought under Article 159 (2) of the Constitution of Kenya 2010, Section 95, 1A, 1B and 3A of the Civil Procedure Act seeking the following orders;1.Spent.2.That this Honourable court be pleased to grant the appellant leave to amend the memorandum of appeal lodged on 11th November, 2022.3.That the prayers/orders sought in the appeal is marred by typographical errors which were inadvertently looked at before filing.4.That the intended amendment is necessary to enable the court determine all issues raised in the appeal and pronounce itself with finality and on merit.5.That the intended amendment will not occasion prejudice to the respondents.6.That the costs of this application be provided for.
2.The application is premised on the grounds stated on its face and the sworn affidavit of Edwin Kiprop Kipkulei counsel sworn on 7th July, 2023. He avers that he filed the memorandum of appeal and thereafter realized it lacked clarity and flow making it necessary to file the instant motion to enable the court determine all issues and pronounce itself with finality and merit.
3.The application is not opposed.
4.The general power to amend pleadings is found in Section 100 of the Civil Procedure Act (CPA) which provides:-
5.It is trite that the power reserved for the Court to amend any document is a discretionary power. Like all judicial discretion however, it must be exercised judiciously and upon reason, rather than arbitrarily, on humour, or fancy.
6.The court of Appeal in the case of George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & another (2016) eKLR held:
7.In the case of Merry Beach Ltd v Barclays Bank Kenya Ltd & another (2018) eKLR the court held:
8.In applying the above principles to the circumstances of this case, I am of the considered view that the amendments proposed in the amended memorandum of appeal reveal no basis to deny the application herein. The amendments are aimed at correcting typographical errors to bring flow and clarity to the memorandum of appeal and there will be no prejudice occasioned to the respondent. I therefore allow the notice of motion dated 7th July 2023 with costs to abide in the appeal.
9.Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT ITEN THIS 19TH DAY OF OCTOBER 2023.L. N. WAITHAKAJUDGEIn the presence of:- No appearance for the appellant.- No appearance for the respondent.