Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal 14 of 2019· [2022] KEELC 12657 (KLR)

Nguli v Matheka

Environment and Land Court
30 September 2022
CMC.G. Mbogo
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a landowner to add a missing surveyor's report and title deed to his appeal, showing courts will accept key documents even after judgment.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Makueni (C.G. Mbogo, J) determined a notice of motion dated June 23, 2020 by the applicant, Stephen Mutua Nguli, seeking leave to produce additional evidence on appeal against the judgment in SPMCC No 387 of 2009 (Makindu Law Courts), delivered May 17, 2019. The applicant, who acted in person at trial, sought to introduce a surveyor's report dated November 20, 2017 and a title deed for Makueni/Masongaleni/328 issued on February 2, 2018, contending the surveyor's report went missing from the court file and the title deed post-dated judgment. The application was brought under section 78(1)(d) of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules. The respondent opposed, arguing the documents were available at trial, the surveyor's report was prepared by an unqualified person, the dispute was a boundary matter under section 18 of the Land Registration Act, and the application was a delaying tactic. The court applied the Supreme Court's principles in Mohammed Abdi Mohamud and the Court of Appeal's guidance in Safe Cargo Limited. It found both parties admitted the surveyor's report had been filed at trial but was missing from the file, likely due to registry misfiling, so the evidence was not new. Noting both documents were already in the record of appeal, were not voluminous, removed doubt over ownership and encroachment, and bore directly on the main issue, the court allowed the application. It permitted filing of the two documents within seven days, ordered each party to bear its own costs, and fixed mention on October 19, 2022 for further directions.

Key legal issues

#
01

Whether leave should be granted to adduce additional evidence (surveyor's report and title deed) on appeal

Holding

Leave granted; the documents are relevant, not voluminous, credible on their face, and bear directly on the main issue in the appeal.

Reasoning

The court applied the Mohammed Abdi Mohamud principles. It found the surveyor's report had been filed at trial but was missing from the court file, possibly due to misfiling by the registry, so it was not new evidence. The title deed was obtained after judgment. Both documents were already in the record of appeal, were not voluminous, and would remove doubt over ownership and encroachment, bearing directly on the main issue.

p. 5

Legal principles established

#
  • Additional evidence may be admitted on appeal where it is not voluminous, removes doubt over the case and has a direct bearing on the main issue, even if the document was previously filed but missing from the court file.

Court orders

#
  1. 1.The applicant is allowed to file the surveyor's report dated November 20, 2017 and the title deed to property known as Makueni/Masongaleni/328 in court within seven days from the date of the orders
  2. 2.Each party shall bear its own costs
  3. 3.Mention on October 19, 2022 before the Deputy Registrar for further directions

Authorities

#

Legislation

  • Civil Procedure ActSection 78(1)(d); sections 1A, 1B and 3A
  • Civil Procedure RulesOrder 42 rules 27, 28 and 29; Order 50 rule 1
  • Land Registration ActSection 18

Cases cited (5)

  • Attorney General versus Torino Enterprises Limited
    [2019] eKLR
  • John Kiplangat Barbaret & 8 others versus Isaiah Kiplangat Arap Cheloget
    [2016] eKLR
  • Mohamed Abdi Mohamed versus Ahmed Abdullahi Mohamed & 3 others
    [2018] eKLR

    Governing principles for allowing additional evidence in appellate courts

  • Safe Cargo Limited vs Embakasi Properties Limited & 2 others
    (2019) eKLR

    Power to admit additional evidence should be used sparingly

  • Republic v Ali Babitu Kololo
    (2017) eKLR

    Additional evidence power to be used sparingly, only for fresh evidence with significant impact

On appeal from
Senior Principal Magistrate's Court (Makindu)
SPMCC No 387 of 2009
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nguli v Matheka", Case Analysis (2022). Environment and Land Appeal 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12657/eng@2022-09-30

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