Francis Muturi Mburu v Flora Wambui Karanja [2017] KEELC 1571 (KLR)
The bottom line
#The High Court refused to let an appellant introduce a land document on appeal because he could have found it during the original trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant exercised reasonable diligence to obtain the green card
The applicant did not exercise due diligence; the subdivision of the land was openly canvassed in the trial court and nothing prevented him from conducting a search at that time.
The court noted that during the trial the respondent repeatedly stated she had subdivided the land equally between her two sons, on which basis interlocutory orders were granted, and defence and corroborating evidence confirmed the subdivision. The applicant participated fully in the proceedings, could have searched the register then, and had the opportunity to challenge the evidence but did not. His reasons for the 2016 search were therefore unconvincing.
Whether the green card would affect the outcome of the appeal
It was doubtful the green card would affect the appeal's outcome given the grounds in the memorandum of appeal.
The appeal was premised on, among other grounds, the allegation that the learned magistrate failed to exercise her discretion judiciously. The court reasoned that the title the applicant contests had already been closed upon subdivision and that the new evidence would at most enable directions going forward, not change the appeal's result.
Whether the documentary evidence is apparently credible and of evidential value
The green card's credibility was in doubt; it did not support any proprietary rights claimed by the applicant.
The green card showed only that the title was closed on subdivision on 5th December 1996 and that new titles 2162 and 2163 were issued, but no evidence showed to whom those parcels were registered. The card did not demonstrate entitlement to the whole parcel by purchase, gift or otherwise, so it lent little credence or value to the applicant's claim.
Legal principles established
#- The power to receive additional evidence on appeal is discretionary, to be exercised sparingly and with caution on three broad principles: reasonable diligence, important influence on the result, and apparent credibility.
- Fresh evidence will not be admitted on appeal except on grounds of fraud or surprise unless it was not available at trial or reasonable diligence would not have made it available.
- Additional evidence may not be used by an unsuccessful litigant to patch up weak points in his case or fill gaps in evidence.
Court orders
#- 1.The Notice of Motion seeking leave to adduce additional documentary evidence (the green card for Loc 4/Gakarara/99) is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- Magistrates' Court, Muranga
- PMCC No. 220 of 1996
- Jurisdiction invoked
- Sections 3A and 78(1)(2) of the Civil Procedure Act; Order 42 rule 27 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Muturi Mburu v Flora Wambui Karanja [2017] KEELC 1571 (KLR)", Case Analysis (2017). Appeal from PMCC No. 220 of 1996, Muranga (court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1571/eng@2017-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.