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ELCDismissedEnvironment and Land Appeal 19 of 2019· [2022] KEELC 13401 (KLR)

Hapu v Parkike & another

Environment and Land Court
22 September 2022
CMC G Mbogo
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let an appellant add new documents to his appeal because he delayed, gave weak explanations, and never showed the court what he wanted to add.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Narok (C G Mbogo, J) on a notice of motion dated June 8, 2022 in which the appellant, George Laton Hapu, sought leave to file a supplementary record of appeal in his appeal against the decision in Narok CMC ELC Case No 39 of 2018. The application was supported by the affidavit of his advocate, Stanley N Kinyanjui, who deposed that pleadings in Civil Suit No 54 of 2013 had been filed away in the firm's archives and were only discovered in May 2022 during office refurbishment, and that the pleadings would assist the court. The 1st respondent opposed, arguing that the appellant had not annexed the intended supplementary material, thereby concealing material facts; that the appeal had no nexus with Civil Suit No 54 of 2013; that there was inordinate and unexplained delay; and that the respondent would be prejudiced as he had already filed written submissions while the appellant had not. The court identified the legal basis as section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules, and applied the Supreme Court's principles in Mohammed Abdi Mohamud and the Court of Appeal's decision in Safe Cargo Limited on additional evidence. Perusing the file, the court noted the applicant's letter of July 14, 2020 confirming he possessed all documents since June 30, 2020, undermining the diligence explanation. The court found counsel's reasons unsatisfactory, observed that the intended pleadings were never tendered for assessment, and declined to engage in a fishing expedition. The application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

Leave refused; the applicant failed to annex the intended pleadings, gave unsatisfactory explanations for the delay, and the 1st respondent would be prejudiced.

Reasoning

The court applied the Mohammed Abdi Mohamud principles and Safe Cargo on additional evidence on appeal. The applicant claimed the Civil Suit No 54 of 2013 pleadings were misplaced and found only in May 2022, but a July 14, 2020 letter showed he had all documents by June 30, 2020, undermining the diligence explanation. The intended material was never exhibited, so the court could not assess relevance. The application, filed nearly a year after the record of appeal, was an afterthought and prejudicial to the respondent who had already filed submissions.

p. 5

Legal principles established

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  • The power to receive additional evidence on appeal should be used sparingly and only where the evidence is fresh and would significantly impact the appeal
  • A party seeking to file a supplementary record of appeal must tender the intended material so the court can assess its relevance; the court will not engage in a fishing expedition

Court orders

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  1. 1.The notice of motion application dated June 8, 2022 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 42 rules 27, 28 and 29
  • Constitution of KenyaArticle 159(2)
  • Practice Directions on Standardization of Practice & Procedures in the High Court 2021Rule 18(c)

Cases cited (7)

  • Allen A Lelekuti v Samuel Thumbi
    [2022] eKLR

    No legal provision demands annexing a supplementary record of appeal for it to be deemed proper

  • Surestep Systems and Solutions Limited v Ataka Kimori & Okoth Advocates
    [2021] eKLR
  • Kenya Agricultural and Livestock Research Organisation v Leah Okoko & Another
    [2022] eKLR

    Applicant must annex the intended supplementary record to show what documents it wishes to include

  • Azim Jiwa Rajwani v Fidelity Commercial Bank (Now SBM Bank Limited)
    [2021] eKLR

    Inordinate delay in filing the application must be sufficiently explained

  • Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others
    [2018] eKLR

    Governing principles for allowing additional evidence in appellate courts

  • Safe Cargo Limited v 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 used sparingly where evidence is fresh and impactful

On appeal from
Chief Magistrate's Court at Narok
Narok CMC ELC Case No 39 of 2018
Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29 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, "Hapu v Parkike & another", Case Analysis (2022). Environment and Land Appeal 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13401/eng@2022-09-22

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