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Court of AppealPartially AllowedCivil Appeal E632 of 2021

Gichuhi & another v Gichuhi & 2 others

Court of Appeal
13 May 2022
6,203 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 family to introduce a handwriting expert report in a contested Will case, ruling late evidence can be admitted if prejudice is managed.

What this practically means

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Executive summary

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This family dispute concerned a Will allegedly written by the late Michael Gichuhi Muiru. The appellants lodged succession cause No. 4 of 2019 claiming intestacy, while the 1st respondent filed cause No. 8 of 2019 as executor seeking to prove the Will. The causes were consolidated, with the Will-probate cause to be heard first. After the advocate who drew the Will testified, the appellants sought leave to introduce a DCI handwriting expert report obtained after the trial commenced. Kasango, J. dismissed the application on 28th September 2021, finding unexplained undue delay and prejudice to the respondents. The appellants appealed on three condensed issues: delay, prejudice, and whether the discretion was exercised judiciously. The respondents objected to the appeal's competence for want of a certified decree/order under Rule 87(1)(g) & (h) of the Court of Appeal Rules. The Court of Appeal (Nambuye, Mbogholi-Msagha and Laibuta, JJA) held the objection belated under Rule 84, raised improperly by submissions, and cured by the certified ruling on record and Article 159(2)(d). On the merits, applying the Mbogo v Shah and United India Insurance parameters, the Court found no inordinate delay since the appellants filed the application a day after receiving the report, only one witness had testified, and the respondents' own expert was yet to testify. Prejudice was manageable through liberty to recall witnesses under section 146(4) of the Evidence Act. The Court allowed the appeal, set aside the impugned ruling, allowed the application, directed the High Court to reopen the respondents' case and admit the evidence, granted liberty to recall witnesses, and ordered each party to bear their own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is competent as laid before the Court, notwithstanding the alleged non-compliance with Rule 87(1)(g) & (h) of the Court of Appeal Rules
  2. 2.Whether the learned trial Judge exercised her discretion injudiciously when she declined to grant the appellants leave to introduce further documentary evidence
  3. 3.Whether the respondents stand to suffer great prejudice should the appeal succeed
  4. 4.Which party should bear the costs of the appeal

Key legal issues

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01

Competence of the appeal for want of a certified decree/order in the record

Holding

The appeal was competent: the objection was belated under Rule 84, was raised only by submissions, and a certified copy of the impugned ruling was on record; Article 159(2)(d) cures the technicality.

Reasoning

Rule 87(1)(g) & (h) requires certified copies of the order and decree, but Rule 87(3) allows rectification. Rule 84 requires objections to competence to be raised within thirty days of service, and no date of service was shown. The court also held that a record of appeal cannot be faulted by mere submissions; the rules provide a process for such objections.

p. 8
02

Whether the trial Judge's refusal of leave to introduce further evidence was an injudicious exercise of discretion

Holding

Yes. The DCI report was not in the appellants' possession when trial commenced, was not deliberately withheld, and they filed the application a day after receiving it; only one witness had testified and the respondents' own expert was yet to testify.

Reasoning

Applying the Mbogo v Shah and United India Insurance parameters, the court found the Judge's reliance on unexplained delay misplaced since the appellants acted as soon as capacitated, and the inherent power of the court and the overriding objective favoured admitting evidence crucial to a contested Will rather than disciplining parties.

p. 10
03

Prejudice to the respondents if further evidence is admitted

Holding

The respondents' concerns do not preclude admission; the court can admit the evidence and grant liberty to recall the respondents' witnesses under section 146(4) of the Evidence Act.

Reasoning

The respondents' main worry was the absence of a provision allowing recall of their witnesses, including Mr. Njanja whose case was closed. The court held that fair-hearing conditions were within reach of both parties because recall could be ordered, so denying the evidence would impede a fair hearing rather than protect one.

p. 10

Legal principles established

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  • An appellate court interferes with a discretionary decision only where the discretion was exercised injudiciously, on the Mbogo v Shah and United India Insurance parameters
  • An objection to the competence of a notice or record of appeal must be raised within thirty days of service under Rule 84; it cannot be raised by way of submissions
  • Article 159(2)(d) is not a panacea for all procedural ills, but faulting a record containing a certified copy of the impugned ruling is undue technicality
  • A party who moves to introduce further evidence as soon as capacitated, where the evidence was not in its possession at trial and only one witness had testified, is not guilty of inordinate delay
  • Concerns about prejudice from further evidence do not preclude its admission where the court can grant liberty to recall witnesses under section 146(4) of the Evidence Act

Court orders

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  1. 1.The order in the ruling of the High Court dated 28th September 2021 set aside and substituted with an order allowing the appellants' application dated 27th July 2021
  2. 2.The High Court directed to reopen the respondents' case and admit the evidence sought to be introduced by the appellants
  3. 3.Liberty granted to either party to recall the respondents' witnesses either to adduce further evidence or for further cross-examination as deemed fit
  4. 4.Thereafter parties to proceed according to law
  5. 5.Each party to bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kiambu
Kiambu HCCC No. 4 of 2019 Consolidated with HCCC No. 8 of 2019
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (first appeal from High Court ruling); overriding objective under sections 3A and 3B invoked

Relief refused

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Respondents' invitation to vitiate the appeal for want of a certified copy of the decree/order under Rule 87(1)(g) & (h)

Objection raised belatedly through submissions rather than under Rule 84; a certified copy of the impugned ruling was on record; refusing relief would be undue technicality

p. 9

Costs

Each party shall bear their own costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The order issued in the ruling of the High Court dated 28th September, 2021 be and is hereby set aside and substituted for an order allowing the appellants’ application dated 27th July, 2021.
p. 10Final orders - setting aside the impugned ruling
The High Court be and is hereby directed to reopen the respondents’ case, admit the evidence sought to be introduced by the appellants in the application dated 27th July, 2021.
p. 10Final orders - admission of further evidence
There is liberty granted to either party to recall the respondents’ witnesses either to adduce further evidence or for further cross-examination as deemed t.
p. 11Final orders - liberty to recall witnesses
Each party shall bear their own costs of this appeal.
p. 11Costs
An appellate court will interfere if the exercise of the discretion is clearly wrong because the Judge has misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
p. 6Parameters for interfering with judicial discretion (Mbogo v Shah)
the issue of inordinate delay does not arise in the circumstances of this appeal as the appellants took remedial action as soon as capacitated.
p. 10Inordinate delay

Issues in the judgment

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minor

Conflicting dates for the DCI report within the judgment

material

Rule 87(3) quoted concerns exclusion of documents, but the court describes it as rectification of default within fifteen days

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, "Gichuhi & another v Gichuhi & 2 others", Case Analysis (2022). Civil Appeal E632 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/818/eng@2022-05-13

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