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ELCAllowedNotice of Motion dated 20/05/2020 (Meru ELC Appeal)· [2021] KEELC 4030 (KLR)

M’mbijiwe M’mutuota v Jane Kathanga [2021] KEELC 4030 (KLR)

Environment and Land Court
17 March 2021
LMLUCY N. MBUGUA
1,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru allowed a landowner to add official court documents to their appeal, even without explaining a five-month delay.

What this practically means

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Executive summary

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This was a notice of motion dated 20/05/2020 in an appeal before the Environment and Land Court at Meru, brought under Section 1A and 3A of the Civil Procedure Act and Order 42 Rules 27, 28 & 29 and Order 51 Rule 1 of the Civil Procedure Rules. The applicant, who claims to be the registered owner of parcel No. Ntima/Igoki/222, sought leave to file a supplementary record of appeal containing the proceedings and judgment of the Meru District Lands Tribunal in case No. 76 of 2000 and the judgment of the Meru High Court in HCA No. 91 of 2007, which quashed the decisions of the Land Dispute Tribunal and the Provincial Appeals Committee. The dispute arose when the Tribunal ordered the land divided equally between the parties, a decision upheld by the Provincial Lands Appeals Committee Embu but later quashed by the High Court. Although the application was described as unopposed, the ruling noted a replying affidavit dated 3/06/2020 was referenced but absent from the court file. The sole issue was whether to grant leave to introduce additional evidence. Relying on Geoffrey Muriungi and Attorney General v Torino Enterprises, Lucy N. Mbugua (ELC Judge) held the discretion must be exercised cautiously but found the proposed evidence was official, credible, and directly relevant. The court allowed the application, directing the supplementary record be filed and served within 14 days on pain of lapse, with costs to the applicant, and set mention for 28.4.2021.

Key legal issues

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01

Whether leave should be granted to file a supplementary record of appeal introducing additional evidence

Holding

Yes - the additional evidence comprises official documents related to court proceedings (the Tribunal proceedings and the Meru High Court judgment quashing the Tribunal and Provincial Appeals Committee decisions) which may assist the court to arrive at a just determination.

Reasoning

The court acknowledged the discretion to admit additional evidence must be exercised cautiously. Applying Geoffrey Muriungi and Attorney General v Torino Enterprises, it noted the proposed evidence consists of official documents originating from courts with proper custody, is directly relevant to issues in the appeal, and its authenticity is unimpugned. It found the evidence may assist a just determination, though it noted the applicant gave no explanation for the five-month delay in bringing the application.

p. 2

Legal principles established

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  • The power of an appellate court to admit additional evidence on appeal should be exercised sparingly and only in exceptional circumstances.

Court orders

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  1. 1.The applicant is to file and serve a supplementary Record of Appeal which shall only include the documents mentioned in the application within 14 days from the date of delivery of the ruling, failing which the orders shall lapse
  2. 2.The applicant is to bear the costs of the application
  3. 3.Mention on 28.4.2021

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rules 27, 28 & 29
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Mohamed Abdi Mahamud V Ahmed Abdullahi Mahamud & 3 other
    [2018] eKLR
  • Attorney General V Torino Enterprises Limited
    [2019] eKLR
  • Geoffrey Muriungi & another v John Rukunga M'Imonyo
    [2017] eKLR
Jurisdiction invoked
Section 1A and 3A of the Civil Procedure Act; Order 42 Rules 27, 28 & 29 and Order 51 Rule 1 of the Civil Procedure Rules

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, "M’mbijiwe M’mutuota v Jane Kathanga [2021] KEELC 4030 (KLR)", Case Analysis (2021). Notice of Motion dated 20/05/2020 (Meru ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4030/eng@2021-03-17

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