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Court of AppealAllowedCivil Appeal No. 17 of 2014· [2019] KECA 108 (KLR)

Joseph Kingsley Karuri v Housing Finance Co. Ltd & another [2019] KECA 108 (KLR)

Court of Appeal of Kenya
6 December 2019
1,992 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a property owner to present new evidence of fraud and irregularities in a bank auction that sold his land.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Ouko (P), Nambuye and Warsame JJ.A) on the appellant's Notice of Motion dated 17th April 2015 seeking leave to tender new and additional evidence on appeal from the judgment of Sergon, J of the High Court at Nyeri. The substantive appeal concerns the exercise by the 1st respondent, a chargor bank, of its statutory power of sale, under which the suit property was bought by the 2nd respondent. The High Court had declined to set aside the sale, holding that fraud was not proved and that an irregularity in the exercise of the statutory power of sale does not invalidate a sale, the remedy being damages. The proposed new evidence comprised a certificate of confirmation of grant showing the 2nd respondent was the daughter of the bank's then branch manager, an internal memo suggesting the highest bidder was Richard K Gikuhi, an affidavit from Gikuhi alleging his bid was frustrated, and a letter from the Auctioneers Licensing Board confirming the auctioneers were unlicensed. Applying Rule 29 and the Mzee Wanje principles (drawn from Ladd v Marshall), the court found the evidence was not available at trial, was apparently credible, and raised fundamental and weighty questions going to the root of the power of sale, including a potential conflict of interest and breach of the Auctioneers Rules. It reiterated that fraud must be distinctly alleged and proved to a standard above a balance of probabilities, and that the discretion is not for filling evidentiary gaps. The court allowed the application with costs and remitted the matter to the High Court for the taking of additional evidence before any Judge other than Sergon, J. The decision binds subordinate courts on the Rule 29 threshold for admitting additional evidence on appeal.

Key legal issues

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01

Test for admission of additional evidence on appeal under Rule 29

Holding

The application met the Wanje threshold: the evidence was new, apparently credible, and capable of importantly influencing the appeal.

Reasoning

The court applied Rule 29 and the Mzee Wanje principles, holding that the evidence on the branch manager's relationship with the 2nd respondent, the frustration of the highest bidder, and the lack of auctioneer licensing was not available at trial, was apparently credible, and went to the root of the statutory power of sale. The evidence was not a mere attempt to fill gaps or make out a fresh case.

p. 3
02

Nature and weight of allegations of fraud

Holding

Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities, and courts must uphold integrity in commercial transactions.

Reasoning

Relying on Vijay Morjaria and Aiman v Muchoki, the court stressed that fraudulent conduct must be distinctly alleged and distinctly proved, with the burden on the party alleging fraud to lay a basis by way of evidence. Because the appeal turned on alleged fraud in the exercise of the chargor's power of sale, the proposed evidence was relevant to the determination of the substantive appeal.

p. 3
03

Whether the alleged conflict of interest and auction irregularities warranted investigation

Holding

The father/daughter relationship between the deceased branch manager and the purchaser, the alleged frustration of the highest bidder, and the lack of auctioneer licensing were fundamental and weighty issues warranting investigation.

Reasoning

The court held that the relationship between the branch manager and the purchaser, the internal memo suggesting Gikuhi was the highest bidder, and the Auctioneers Licensing Board letter showing the auctioneers were unlicensed raised fundamental questions going to the root of the power of sale. These new factual situations were never before the trial court and needed proper investigation, justifying remission.

p. 3

Legal principles established

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  • Fresh evidence on appeal will only be admitted where it could not with due diligence have been obtained at trial, would probably have an important influence on the appeal, and is apparently credible.
  • The discretion to admit additional evidence is not for filling gaps in evidence or enabling a party to make out a fresh case on appeal.
  • Fraud must be distinctly alleged and distinctly proved; the standard of proof exceeds a balance of probabilities.
  • Except on grounds of fraud or surprise, the Court will not admit fresh evidence unless it was not available at trial or reasonable diligence would not have made it available.

Court orders

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  1. 1.Leave granted to the appellant to tender new evidence in documentary form
  2. 2.Leave granted for oral evidence by Richard K Gikuhi
  3. 3.The matter remitted to the High Court for taking of the additional evidence before any Judge other than Sergon, J
  4. 4.Application allowed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(a) and (b)
  • Auctioneers Rulesmandatory provisions on registration of auctioneers

Cases cited (5)

  • Mzee Wanje & 93 Others vs. A K Saikwa & Others
    (1982-88) 1 KAR 462
  • Ladd vs. Marshall
    [1954] 1 WLR 1489
  • Hon. Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamed & 3 Others
    Sup Petition No. 7 of 2018
  • Vijay Morjaria vs. Nasingh Madhusigh Darbar & Another
    [2000] eKLR
  • Aiman vs. Muchoki
    (1984) KLR 353
On appeal from
High Court of Kenya at Nyeri
HCCC No. 102 of 1997
Jurisdiction invoked
Rule 29 of the Court of Appeal Rules - power to take additional evidence on appeal from a superior court exercising original jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kingsley Karuri v Housing Finance Co. Ltd & another [2019] KECA 108 (KLR)", Case Analysis (2019). Civil Appeal No. 17 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/108/eng@2019-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.