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Court of AppealDismissedCivil Appeal (Application) No. 259 of 2002· [2020] KECA 503 (KLR)

1. Simon Ngure Githinji 2. Charles Mwangi Gitundu v Charles Wanjohi Wathuku

Court of Appeal of Kenya
24 July 2020
KMK. M'InotiAMA. K. MurgorSKS. ole Kantai
2,432 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to allow new evidence in a 20-year-old succession dispute, ruling that public records should have been checked long before the appeal.

What this practically means

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Executive summary

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In this interlocutory ruling, the Court of Appeal at Nairobi (M'Inoti, Murgor and Kantai JJ.A) dismissed the applicants' Notice of Motion dated 24th January 2020 seeking leave to adduce additional documentary evidence in their pending appeal against a High Court of Nyeri ruling (Juma, J, 18th October 2001) in a succession dispute over the estate of Wathuku Ngure. The applicants, who objected to the respondent's petition for letters of administration on the ground that he was not the deceased's son, sought to introduce birth registry documents obtained after digitization, alleging the respondent had two conflicting birth registrations with different parentage and dates of birth. Applying the settled principles from Mzee Wanjie vs Saikwa, as expounded in the Aga Khan Hospital vs Munyambu case, the Court held that the evidence failed all three limbs of the test. The registry information was always in existence and could have been discovered with reasonable diligence at trial, digitization notwithstanding. The documents raised more questions than they answered - as to authorship, authenticity and identity - requiring a probing exercise unsuitable for a court of record twenty years after trial. Credibility was further undermined because the respondent's brother, born on the same date, claimed the very birth certificate relied upon. Noting the appeal has been pending since 2002, the Court directed that it be determined post haste and dismissed the application with costs to the respondent.

Key legal issues

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01

Reasonable diligence in obtaining additional evidence

Holding

The applicants failed the diligence limb because the birth registry records were always available for search regardless of digitization

Reasoning

The applicants argued the double birth registration only became discoverable after digitization of births records commenced in 2013. The Court rejected this, holding that registry searches were always possible and the information was always in existence; the applicants should have searched the Births and Deaths Registry during the trial. The 20-year passage of time since trial and the pendency of the appeal since 2002 weighed heavily against admission.

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02

Important influence and credibility of the proposed evidence

Holding

The documents raised more questions than answers, required probing this Court of record could not conduct, and their credibility was undermined by a competing claim of ownership

Reasoning

The Court found the documents would require further probing as to authorship, authenticity and identity - matters ill-suited to an appellate court of record, especially 20 years later when witnesses may be dead or untraceable. Peter Muriithi Chomba, born the same day, claimed the birth certificate, destroying the inference that it belonged to the respondent. The evidence thus failed both the influence and credibility limbs.

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Legal principles established

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  • The Court of Appeal's discretion under rule 29(1)(b) to admit additional evidence is governed by the Mzee Wanjie principles: diligence, probable important influence, and apparent credibility.
  • Information held in a public registry is deemed obtainable with reasonable diligence whether or not the registry has been digitized.

Court orders

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  1. 1.The Notice of Motion dated 24th January 2020 seeking to adduce additional evidence is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nyeri
HCSC No. 60 of 1997
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules (power to take additional evidence)

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, "1. Simon Ngure Githinji 2. Charles Mwangi Gitundu v Charles Wanjohi Wathuku", Case Analysis (2020). Civil Appeal (Application) No. 259 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/503/eng@2020-07-24

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