1. The application that is before this court for determination is the one dated 21st August 2025 wherein the applicant is seeking the following orders: -
1) THAT the Honourable Court may be pleased to grant leave to the Appellant to amend its Memorandum of Appeal.
2) THAT upon leave being granted, the attached amended memorandum of Appeal be deemed to be duly filed.
3) Costs of the Application be provided for.
2. It is the applicant's case that after coming on record for and on behalf of the respondent, the Appellant’s new advocates realized that some grounds of appeal had been left out by the previous advocates.
3. The grounds are set out in the draft amended Memorandum of Appeal.
4. The Respondents oppose the application on the basis that the memorandum of appeal was never served. They secured the same on the Court Tracking System and as such an application to amend the Memorandum of Appeal cannot be allowed.
Analysis and determination:
5. This court has looked at the application and indeed it is satisfied that the Memorandum of Appeal was never served upon the Respondents.
6. Order 42 Rule 11 provides that a judge of the High Court shall, within thirty days of the filing of an appeal under section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of section 79B of the Act.
7. Order 42, rule 12 stipulates that where the judge admits the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar.
8. In determining the application, this court is guided by the decision in Vishva Stone Suppliers Company Limited v RSR Stone 2006 Limited(2020)e KLR where it was held that the court may invoke the Article 159(2)(d) of the Constitution to cure default for ends of justice to be met in the matter. The decisions in Jaldesa Tuke Dabelo v IEBC& Another (2015 )e KLR , Raila Odinga and 5 Others v IEBC &3 Others (2013)e KLR, Lemanken Arata v Harum Meita Mei Lempaka & 2 Others and Patricia Cherotich Sawe v IEBC & 4 Others e KLR found that ‘rules of procedure are handmaiden of justice and a court of law should not allow prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties …’’
9. In the instant case, it is this court’s finding that since the Respondents have already accessed the Memorandum of Appeal, they will not stand prejudiced if the application is allowed.
10. The lapse on the part of the Applicant is a technicality that can be cured through Article 159 of the Constitution which I hereby invoke in allowing the application.
Determination:
11. The application has merit.
Order:
1) The application is allowed.
2) The draft me Memorandum of Appeal shall be deemed as filed upon payment of the court filing fees which must in any event be within 7 days.
3) Costs in the cause.
1) THAT the Honourable Court may be pleased to grant leave to the Appellant to amend its Memorandum of Appeal.
2) THAT upon leave being granted, the attached amended memorandum of Appeal be deemed to be duly filed.
3) Costs of the Application be provided for.
2. It is the applicant's case that after coming on record for and on behalf of the respondent, the Appellant’s new advocates realized that some grounds of appeal had been left out by the previous advocates.
3. The grounds are set out in the draft amended Memorandum of Appeal.
4. The Respondents oppose the application on the basis that the memorandum of appeal was never served. They secured the same on the Court Tracking System and as such an application to amend the Memorandum of Appeal cannot be allowed.
Analysis and determination:
5. This court has looked at the application and indeed it is satisfied that the Memorandum of Appeal was never served upon the Respondents.
6. Order 42 Rule 11 provides that a judge of the High Court shall, within thirty days of the filing of an appeal under section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of section 79B of the Act.
7. Order 42, rule 12 stipulates that where the judge admits the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar.
8. In determining the application, this court is guided by the decision in Vishva Stone Suppliers Company Limited v RSR Stone 2006 Limited(2020)e KLR where it was held that the court may invoke the Article 159(2)(d) of the Constitution to cure default for ends of justice to be met in the matter. The decisions in Jaldesa Tuke Dabelo v IEBC& Another (2015 )e KLR , Raila Odinga and 5 Others v IEBC &3 Others (2013)e KLR, Lemanken Arata v Harum Meita Mei Lempaka & 2 Others and Patricia Cherotich Sawe v IEBC & 4 Others e KLR found that ‘rules of procedure are handmaiden of justice and a court of law should not allow prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties …’’
9. In the instant case, it is this court’s finding that since the Respondents have already accessed the Memorandum of Appeal, they will not stand prejudiced if the application is allowed.
10. The lapse on the part of the Applicant is a technicality that can be cured through Article 159 of the Constitution which I hereby invoke in allowing the application.
Determination:
11. The application has merit.
Order:
1) The application is allowed.
2) The draft me Memorandum of Appeal shall be deemed as filed upon payment of the court filing fees which must in any event be within 7 days.
3) Costs in the cause.