RULING
1. This is a Ruling arising from an application by the Appellant/Applicant dated 17th November, 2025 seeking to amend the Memorandum of Appeal.
Background Facts
2. The Applicant filed the Notice of Motion dated 17th November, 2025 seeking the following orders;
a) Spent.
b) The Court to grant leave to the Appellant/ Applicant to further Amend its Amended Memorandum of Appeal dated 24th July 2025 to rectify the section 54(4) (A) and 54(11) of the Tax Procedure Act relied on the said amended appeal to read as section (51) (4A) and 51(11) of the Tax Procedure Act.
c) Costs of this application be provided for.
3. This Application was supported by the Affidavit of Olendo Cecilia , an Advocate. She stated that while preparing written submissions, she discovered that she had inadvertently omitted a crucial ground in the Memorandum of Appeal. This prompted the filing of an application dated 26th March 2025 seeking leave to amend. It was allowed on 24th July 2025 with directions to file an amended Memorandum within 10 days.
4. Subsequently, during preparation of submissions, it was realized that the Amended Memorandum of Appeal contained an error by citing non-existent provisions—Sections 54(4A) and 54(11) of the Tax Procedures Act. This is instead of the intended Sections 51(4)(A) and 51(11), an error apparent on the face of the record. The Applicant therefore seeks leave under Rule 14 of the Tax Appeals Tribunal (Appeals to the High Court) Rules to further amend the Memorandum. It is submitted that failure to correct the error would prejudice the appeal and occasion injustice. That in any case, the Respondent would suffer no prejudice if the amendment is allowed.
5. The Respondent responded vide the Replying Affidavit of Hellen Njoroge Advocate sworn on 26th November 2025. The Respondent opposed the application for further amendment of the Memorandum of Appeal. It is contended that although the Court had earlier granted leave to amend on 24th July 2025, the present application introduces a new and distinct cause of action which must independently meet the legal threshold for amendment. It was argued that the Applicant seeks to introduce new statutory provisions—Sections 51(11) and 51(4A) of the Tax Procedures Act. This is on the basis that the Respondent’s objection decision was time-barred. Yet, this issue was neither raised nor determined before the Tax Appeals Tribunal. As such, appeals to the High Court under Section 56(2) of the Act are confined strictly to issues of law arising from the Tribunal’s findings, and not new factual issues.
6. The Respondent further asserted that the proposed amendment improperly introduces disputed issues of fact that were neither pleaded nor canvassed before the Tribunal. Thus, thereby inviting the Court to act beyond its appellate jurisdiction and effectively convert itself into a trial Court. This, it is argued, would occasion prejudice to the Respondent, who was denied the opportunity to respond to such issues at the Tribunal level. Consequently, the application is said to be incompetent, frivolous, and an abuse of the Court process, failing to meet the established principles governing amendment of pleadings as set out in relevant case law.
Issues for determination
7. The Court has carefully considered the Application, the response thereto, and the submissions by the parties. The single issue for determination is;
a) Whether the Applicant’s amendment application is merited.
Analysis
8. It is noteworthy that the Applicant herein had filed an Application dated 26th March 2025 seeking to amend the Memorandum of Appeal, and the same was allowed vide the Ruling dated 24th July 2025.
9. The Applicant has once again filed the present Application seeking a further amendment of the Memorandum of Appeal. The Applicant states that the Applicant erroneously relied on section 54(4) and 54(11) of the Tax Procedure Act, whereas the Applicant had intended to rely on section 51(4A) and 51(11) of the Tаx Procedure Act. Further, the same was an error apparent on the face of the record as the section relied on the Amended Memorandum of Appeal does not even exist in the Act.
10. In response, the Respondent argued that permitting the amendment would therefore occasion prejudice to the Respondent, who would be denied the opportunity to respond or adduce evidence, rendering the application untenable.
11. In the case of Harrison C. Kariuki vs. Blueshield Insurance Company Ltd [2006] eKLR in which the court referred to the Court of Appeal decision in Central Kenya Ltd vs. Trust Bank Ltd [2003] EALR 365 it was held as follows:
“The guiding principle in applications to amend pleadings is that the same will be liberally and freely permitted unless prejudice and injustice will be occasioned to the opposite party. There will normally be no injustice if the other party can be compensated by an appropriate award of costs for any expense, delay or bother occasioned to him. The main reason for this is that it be in the interests of justice that the amendments sought be permitted in order that the real question in controversy between the parties be determined.”
12. It is noteworthy that in the Ruling dated 24th July 2025 the Court had noted that the Respondent had averred that Section 54 (4A) and 55 of the Tax Procedures Act upon which the amendment was premised were non-existent.
13. As previously stated, Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act emphasize the need to prioritize substantive justice over procedural technicalities, and to ensure the just, efficient, and expeditious disposal of cases.
14. It is therefore the Court’s considered view that the Respondent will suffer no prejudice or injustice if the amendment is allowed. It is common ground between the parties that the provisions initially relied upon by the Applicant do not exist. In the interests of justice, the amendment ought to be allowed so as to enable reliance on the correct provisions.
15. The Objections now raised by the Respondent can still be raised and argued during the hearing of the Appeal.
16. As to costs the same lie at the discretion of this Court and ordinarily follow the event. The fair and just order in the circumstances is that there will be no order as to costs.
Determination
17. The Appellant/Applicant’s application by way of a Notice of Motion dated 17th November, 2025 is allowed in the following terms.
a) The Court HEREBY grants leave to the Appellant/ Applicant to further Amend its Amended Memorandum of Appeal dated 24th July 2025 to rectify the section 54(4) (A) and 54(11) of the Tax Procedure Act relied on the said amended appeal to read as section (51) (4A) and 51(11) of the Tax Procedure Act.
b) The said Further Amended Memorandum of Appeal to be filed and served upon the Respondent within the next Fourteen (14) days from the date hereof.
c) There be no orders as to costs.
18. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 12TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Olendo for the Appellant/Applicant.
Mr. Nyapara for the Respondent.
Ms. Susan Nzioka - Court Assistant.
1. This is a Ruling arising from an application by the Appellant/Applicant dated 17th November, 2025 seeking to amend the Memorandum of Appeal.
Background Facts
2. The Applicant filed the Notice of Motion dated 17th November, 2025 seeking the following orders;
a) Spent.
b) The Court to grant leave to the Appellant/ Applicant to further Amend its Amended Memorandum of Appeal dated 24th July 2025 to rectify the section 54(4) (A) and 54(11) of the Tax Procedure Act relied on the said amended appeal to read as section (51) (4A) and 51(11) of the Tax Procedure Act.
c) Costs of this application be provided for.
3. This Application was supported by the Affidavit of Olendo Cecilia , an Advocate. She stated that while preparing written submissions, she discovered that she had inadvertently omitted a crucial ground in the Memorandum of Appeal. This prompted the filing of an application dated 26th March 2025 seeking leave to amend. It was allowed on 24th July 2025 with directions to file an amended Memorandum within 10 days.
4. Subsequently, during preparation of submissions, it was realized that the Amended Memorandum of Appeal contained an error by citing non-existent provisions—Sections 54(4A) and 54(11) of the Tax Procedures Act. This is instead of the intended Sections 51(4)(A) and 51(11), an error apparent on the face of the record. The Applicant therefore seeks leave under Rule 14 of the Tax Appeals Tribunal (Appeals to the High Court) Rules to further amend the Memorandum. It is submitted that failure to correct the error would prejudice the appeal and occasion injustice. That in any case, the Respondent would suffer no prejudice if the amendment is allowed.
5. The Respondent responded vide the Replying Affidavit of Hellen Njoroge Advocate sworn on 26th November 2025. The Respondent opposed the application for further amendment of the Memorandum of Appeal. It is contended that although the Court had earlier granted leave to amend on 24th July 2025, the present application introduces a new and distinct cause of action which must independently meet the legal threshold for amendment. It was argued that the Applicant seeks to introduce new statutory provisions—Sections 51(11) and 51(4A) of the Tax Procedures Act. This is on the basis that the Respondent’s objection decision was time-barred. Yet, this issue was neither raised nor determined before the Tax Appeals Tribunal. As such, appeals to the High Court under Section 56(2) of the Act are confined strictly to issues of law arising from the Tribunal’s findings, and not new factual issues.
6. The Respondent further asserted that the proposed amendment improperly introduces disputed issues of fact that were neither pleaded nor canvassed before the Tribunal. Thus, thereby inviting the Court to act beyond its appellate jurisdiction and effectively convert itself into a trial Court. This, it is argued, would occasion prejudice to the Respondent, who was denied the opportunity to respond to such issues at the Tribunal level. Consequently, the application is said to be incompetent, frivolous, and an abuse of the Court process, failing to meet the established principles governing amendment of pleadings as set out in relevant case law.
Issues for determination
7. The Court has carefully considered the Application, the response thereto, and the submissions by the parties. The single issue for determination is;
a) Whether the Applicant’s amendment application is merited.
Analysis
8. It is noteworthy that the Applicant herein had filed an Application dated 26th March 2025 seeking to amend the Memorandum of Appeal, and the same was allowed vide the Ruling dated 24th July 2025.
9. The Applicant has once again filed the present Application seeking a further amendment of the Memorandum of Appeal. The Applicant states that the Applicant erroneously relied on section 54(4) and 54(11) of the Tax Procedure Act, whereas the Applicant had intended to rely on section 51(4A) and 51(11) of the Tаx Procedure Act. Further, the same was an error apparent on the face of the record as the section relied on the Amended Memorandum of Appeal does not even exist in the Act.
10. In response, the Respondent argued that permitting the amendment would therefore occasion prejudice to the Respondent, who would be denied the opportunity to respond or adduce evidence, rendering the application untenable.
11. In the case of Harrison C. Kariuki vs. Blueshield Insurance Company Ltd [2006] eKLR in which the court referred to the Court of Appeal decision in Central Kenya Ltd vs. Trust Bank Ltd [2003] EALR 365 it was held as follows:
“The guiding principle in applications to amend pleadings is that the same will be liberally and freely permitted unless prejudice and injustice will be occasioned to the opposite party. There will normally be no injustice if the other party can be compensated by an appropriate award of costs for any expense, delay or bother occasioned to him. The main reason for this is that it be in the interests of justice that the amendments sought be permitted in order that the real question in controversy between the parties be determined.”
12. It is noteworthy that in the Ruling dated 24th July 2025 the Court had noted that the Respondent had averred that Section 54 (4A) and 55 of the Tax Procedures Act upon which the amendment was premised were non-existent.
13. As previously stated, Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act emphasize the need to prioritize substantive justice over procedural technicalities, and to ensure the just, efficient, and expeditious disposal of cases.
14. It is therefore the Court’s considered view that the Respondent will suffer no prejudice or injustice if the amendment is allowed. It is common ground between the parties that the provisions initially relied upon by the Applicant do not exist. In the interests of justice, the amendment ought to be allowed so as to enable reliance on the correct provisions.
15. The Objections now raised by the Respondent can still be raised and argued during the hearing of the Appeal.
16. As to costs the same lie at the discretion of this Court and ordinarily follow the event. The fair and just order in the circumstances is that there will be no order as to costs.
Determination
17. The Appellant/Applicant’s application by way of a Notice of Motion dated 17th November, 2025 is allowed in the following terms.
a) The Court HEREBY grants leave to the Appellant/ Applicant to further Amend its Amended Memorandum of Appeal dated 24th July 2025 to rectify the section 54(4) (A) and 54(11) of the Tax Procedure Act relied on the said amended appeal to read as section (51) (4A) and 51(11) of the Tax Procedure Act.
b) The said Further Amended Memorandum of Appeal to be filed and served upon the Respondent within the next Fourteen (14) days from the date hereof.
c) There be no orders as to costs.
18. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 12TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Olendo for the Appellant/Applicant.
Mr. Nyapara for the Respondent.
Ms. Susan Nzioka - Court Assistant.