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Court of AppealDismissedNotice of motion dated 27th February 2024 (Court of Appeal, Nairobi)· [2024] KECA 489 (KLR)

Kituyi v Musimba (Civil Appeal (Application) 91 of 2020) [2024] KECA 489 (KLR)

Court of Appeal of Kenya
9 May 2024
DMD. K. MusingaASAsike-MakhandiaKMK. M'Inoti
3,582 words in judgment
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The bottom line

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Kenya's Court of Appeal rejected Mukhisa Kituyi's bid to add new evidence and stay execution, warning that delayed, undocumented evidence and repeat stay applications will not succeed.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, P., Asike-Makhandia and M'Inoti, JJ.A.) dismissed a notice of motion dated 27th February 2024 by the appellant in an appeal arising from the High Court suit Nairobi HCCC No. E110 of 2018, in which Kshs.35,000,000 paid to the appellant was held to be a loan recoverable from him rather than a forfeited deposit for the purchase of L.R. No. 194/34 Karen. The applicant sought to adduce a conveyance document and a letter from Wachira Wambugu & Co. Advocates LLP as additional evidence, to allow viva voce and affidavit testimony with cross-examination, and to stay execution of the decree pending appeal. The Court, applying rule 31(1) of its Rules and the guidelines in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed and Attorney General v Torino Enterprises Limited, held that the applicant had not demonstrated the reasonable diligence required, as it was inconceivable that a vital legal document kept in his own Nairobi and Kitale homes took nearly five years to trace; the document was also unexecuted and unattested, and the respondent denied signing it, making its probative value doubtful. The stay prayer was held res judicata, a similar application having been dismissed by the Court on 20th November 2020, and the applicant was attempting a second bite at the cherry. The Court accordingly dismissed the motion with costs to the respondent. This disposition binds the parties and lower courts on the principles stated.

Key legal issues

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01

Admission of additional evidence on appeal under rule 31 of the Court of Appeal Rules

Holding

The application failed because the applicant did not exercise reasonable diligence in producing the conveyance during the trial and its probative value was doubtful

Reasoning

The court applied the guidelines in Mohamed Abdi Mohamed and Attorney General v Torino Enterprises. Although the applicant claimed the document was locked in his Nairobi and Kitale homes while he served as UNCTAD Secretary General in Geneva, the court found he had not demonstrated due diligence, and that his eventual retrieval of the document showed he was aware of its existence. The document was unattested and the respondent denied executing it, rendering its probative value doubtful.

p. 6
02

Res judicata in respect of the stay of execution prayer

Holding

The stay prayer was res judicata because the Court had already dismissed a similar application for stay of the same decree on 20th November 2020

Reasoning

The Court compared the application dated 22nd April 2020 with the instant application and found that both sought stay of execution of the High Court decree dated 11th December 2019. The applicant's argument that the earlier application was based on a different set of facts was rejected. Having so found, the court declined to consider the arguability and nugatory limbs of the stay test.

p. 6

Legal principles established

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  • Additional evidence on appeal may only be admitted on a case-by-case basis, sparingly, where the applicant substantially complies with the Mohamed Abdi Mohamed guidelines, including demonstration of reasonable diligence and credibility of the evidence
  • A fresh application for stay of execution of the same decree is res judicata where an earlier similar application was dismissed, and the applicant cannot obtain a second bite at the cherry

Court orders

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  1. 1.The notice of motion dated 27th February 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Constitution of Kenya, 2010Articles 47, 48, 50, 159, 160
  • Court of Appeal Rules (2022)Rule 31(1)
  • Court of Appeal RulesRules 5(2)(b), 29, 30, 31, 42, 47, 87; rule 29(1)(b) of the 2010 Rules
  • Law of Contract ActSection 3(3)
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (4)

  • Attorney General v Torino Enterprises Limited
    [2019] eKLR
  • Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson
    [2017] eKLR
  • Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others
    [2018] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
Nairobi HCCC No. E110 of 2018
Jurisdiction invoked
Rules 5(2)(b), 29, 30, 31, 42, 47 and 87 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, with Articles 47, 48, 50, 159 and 160 of the Constitution invoked by the applicant

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, "Kituyi v Musimba (Civil Appeal (Application) 91 of 2020) [2024] KECA 489 (KLR)", Case Analysis (2024). Notice of motion dated 27th February 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/489/eng@2024-05-09

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