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ELCDismissedMachakos CMCC No. 1006 of 2008 (Appeal)· [2018] KEELC 1787 (KLR)

Isaac Wambua Nzyoka v David Kisilu Mativo & 3 others [2018] KEELC 1787 (KLR)

Environment and Land Court
28 September 2018
OAO.A. Angote
1,226 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to add fresh evidence on appeal because the appellant showed no effort to get the documents during trial.

What this practically means

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Executive summary

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This was an application dated 27th March 2017 by the Appellant, seeking leave to adduce and/or produce additional/fresh documentary evidence at or before the hearing of his Appeal against the decision of the Senior Resident Magistrate in Machakos CMCC No. 1006 of 2008. In the lower court, the Respondents had sued to lift a caution the Appellant lodged over Machakos/Mua Hills/288, alleging it was unlawfully placed. The Appellant asserted ownership of plot 304, which he said bordered plot 288. The trial Magistrate, relying on a Surveyor's report by consent of the parties, held the two plots were separate and distinct and that the caution was an illegality. Before the ELC, the Appellant deponed that vital documents, including mutation forms and letters, went missing from a land registry file and were only found after filing the Appeal, and that their production would have influenced the outcome. The Respondents opposed, contending the judgment followed a consent, that no new evidence had emerged, that the application was filed three years after the lower court decision, and that it offended Section 67(2) of the Civil Procedure Act. Justice O.A. Angote held that although Section 78(2) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules permit an Appellate Court to take additional evidence, this is an exception, applying the Ladd v Marshall test as adopted in John Kiplangat Barbaret. The Appellant showed no efforts to obtain the public documents from the Registrar or that the file was missing during trial. The application was dismissed with costs on 28th September 2018, with the question whether the Surveyor's Report was factual left for determination at the hearing of the Appeal.

Key legal issues

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01

Whether the Appellant met the threshold for admission of additional evidence on appeal

Holding

The Application does not meet the threshold; the Appellant did not show the documents were unavailable at trial or that he exercised due diligence to obtain them

Reasoning

The court applied Section 78(2) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, read with Ladd v Marshall as adopted in John Kiplangat Barbaret. The Appellant alleged the land registry file went missing, but made no allegation of missing documents during trial and demonstrated no efforts to obtain the public documents from the Registrar. The Surveyor and Registrar must also have reviewed the registry documents before preparing their Report.

p. 2
02

Effect of the consent referring the dispute to the Surveyor's report

Holding

The trial Magistrate correctly decided the case on the Surveyor's report as the parties had agreed it would be the sole evidence

Reasoning

The record shows a consent that the District Land Registrar and District Land Surveyor visit Mua Hills and identify the parcels using official maps and survey plans. The trial court found the report uncontested and decided on it. Whether the Report was factual remains a matter for determination at the hearing of the Appeal, not on this application.

p. 2

Legal principles established

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  • The taking of additional evidence by an Appellate Court is an exception, not the rule
  • A party seeking to adduce fresh evidence on appeal must show it was not available at trial or that reasonable diligence would not have made it available

Court orders

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  1. 1.The Application dated 27th March, 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 67(2)
  • Civil Procedure ActSection 78 (and Section 78(2))
  • Civil Procedure RulesOrder 42 Rule 27

Cases cited (2)

  • John Kiplangat Barbaret & 8 others vs. Isaiah Kiplagat Arap Cheluget
    (2016) eKLR
  • Ladd vs. Marshall
    (1954) 1 WLR 1489
On appeal from
Senior Resident Magistrate's Court, Machakos
Machakos CMCC No. 1006 of 2008
Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules (appellate jurisdiction 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, "Isaac Wambua Nzyoka v David Kisilu Mativo & 3 others [2018] KEELC 1787 (KLR)", Case Analysis (2018). Machakos CMCC No. 1006 of 2008 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1787/eng@2018-09-28

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