Musilili Kilonzo & another v Josphine Selle Juma (Suing on behalf of Mbithe Mutyambai (Deceased) [2022] KEELC 1642 (KLR)
The bottom line
#A Kenyan land court refused to hear new evidence on appeal and struck out the winner's injunction, telling both sides to move the appeal forward.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of further evidence on appeal
The application to adduce the survey map and call the surveyor was dismissed; the Appellants failed to exercise due diligence since the map was only requested after judgment on 18th September 2019
The court applied Order 42 Rule 27 CPR and the Ladd v Marshall principles as adopted in Tarmohamed v Lakhani, holding that evidence obtainable with reasonable diligence at trial cannot be admitted on appeal. Asking for the map only after judgment showed lack of diligence, and admitting it would give the losing Appellants an undeserved second bite at the cherry.
Injunction pending appeal
The Respondent's injunction prayers were struck out because a respondent without an appeal of their own cannot satisfy the requirement that their appeal be rendered nugatory
Guided by Patricia Njeri v National Museum of Kenya and Nguruman v Jan Bonde Nielsen, the court held that injunction pending appeal requires arguable appeal grounds and nugatory-ness. The Respondent, having won at trial and not being an appellant, could not anchor such an application; the application was therefore struck out with costs.
Contempt of court
The prayer to commit adjudication officers to civil jail for six months was rejected for want of evidence
Applying Samwel M. N. Mweru v National Land Commission, the court found no annexed order of the court and no evidence of deliberate disobedience. Contempt requires proof of the order disobeyed, the manner of disobedience and deliberateness; none was tendered, so the prayer failed.
Legal principles established
#- Production of additional evidence on appeal is not a matter of course and may only be allowed in exceptional circumstances, with the appellate court recording reasons for its admission
- An appellate court's role is not to allow a losing party to patch up weaknesses in their case with fresh facts
- Injunction pending appeal requires an arguable appeal that would be rendered nugatory if the injunction is refused; a respondent without an appeal of their own cannot invoke it
- Contempt must be proved by showing the orders disobeyed, the manner of disobedience and that the disobedience was deliberate
Court orders
#- 1.The Appellants' application dated 22nd October 2020 is dismissed with costs
- 2.The Respondent's application dated 4th November 2020 is struck out with costs
- 3.The Appellants to file and serve the record of appeal within 30 days
- 4.The Deputy Registrar to ensure the lower court file is placed on record before the next mention date
- 5.Mention on 10th March 2022 for directions
- On appeal from
- Principal Magistrate's Court, Mutomo
- Mutomo SPMCC No. 7 of 2018
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court under the Civil Procedure Act (Section 78) and Order 42 Rules 27 and 6(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musilili Kilonzo & another v Josphine Selle Juma (Suing on behalf of Mbithe Mutyambai (Deceased) [2022] KEELC 1642 (KLR)", Case Analysis (2022). ELC Appeal (Mutomo SPMCC No. 7 of 2018) - Notice of Motion dated 22nd October 2020 and Notice of Motion dated 4th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1642/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.