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ELCDismissedThika ELC Appeal (memorandum of appeal dated 15/8/2023 arising from Thika CMC MCL & E Case No 21 of 2020)· [2024] KEELC 1365 (KLR)

Njuki v Mwangi & another (Environment and Land Appeal E022 of 2023) [2024] KEELC 1365 (KLR)

Environment and Land Court
14 March 2024
BEB M Eboso
2,365 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to let an appellant adduce fresh valuation evidence on appeal, ruling it was merely an attempt to patch weaknesses in her case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (B M Eboso, J) on a notice of motion dated 27/10/2023 by Judy Waithira Njuki, the appellant in an appeal against the judgment of 19/7/2023 of Hon M W Kurumbu, Principal Magistrate, in Thika CMC MCL & E Case No 21 of 2020, in which her claim to Thika Municipality Block 29/43 was dismissed and the respondents' counterclaim for eviction allowed. The appellant sought leave to procure and adduce additional evidence - Government Valuer's reports on the value of the suit property as at February 2021 and July 2023, a Topmark Valuers report dated 11/9/2023, and a supplementary record of appeal - to support her first five grounds of appeal attacking the trial magistrate's pecuniary jurisdiction under Section 7(1)(c) of the Magistrates Court Act. The 2nd respondent opposed, arguing multiplicity of applications and estoppel after filing of submissions. The court framed a single issue: whether the application met the criteria for admission of additional evidence on appeal under Section 78 of the Civil Procedure Act and Order 42 rule 27 of the Civil Procedure Rules, as governed by the Supreme Court's principles in Mohamed Abdi Mohamed. The court found the valuation evidence did not exist at trial, was procured after the appeal was lodged purely to bolster the jurisdictional grounds, and that the appellant, who prosecuted the claim before two magistrates without objection, could have obtained a valuation during trial. The application was rejected with costs to the applicant.

Key legal issues

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Whether the criteria for admission of additional evidence on appeal were satisfied

Holding

The application failed; the valuation evidence did not exist at trial, was procured post-appeal to bolster jurisdictional grounds of appeal, and could not have been unavailable with reasonable diligence.

Reasoning

The court applied Section 78 of the Civil Procedure Act and Order 42 rule 27 of the Civil Procedure Rules as regulated by the Mohamed Abdi Mohamed principles. The record showed the appellant prosecuted the claim before two magistrates without ever raising pecuniary jurisdiction, and could have placed a valuation report before the trial court if she had doubts. The report of 11/9/2023 was therefore an attempt to make a fresh case on appeal and fill gaps, not evidence that could not have been obtained with reasonable diligence for use at trial.

p. 5

Legal principles established

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  • An unsuccessful party at trial cannot procure post-appeal evidence to patch up weaknesses in grounds of appeal; such evidence does not meet the criteria for admission on appeal.
  • An appellate court should not step out of its neutral role to assist a party procure fresh evidence.

Court orders

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  1. 1.The application dated 27/10/2023 is rejected
  2. 2.The applicant shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 42 rule 27
  • Magistrates Court Act 2015Section 7(1)(c)

Cases cited (1)

  • Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others
    [2018] eKLR
On appeal from
Chief Magistrate's Court, Thika
Thika CMC MCL & E Case No 21 of 2020
Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 rule 27 of the Civil Procedure Rules (appellate jurisdiction to admit 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, "Njuki v Mwangi & another (Environment and Land Appeal E022 of 2023) [2024] KEELC 1365 (KLR)", Case Analysis (2024). Thika ELC Appeal (memorandum of appeal dated 15/8/2023 arising from Thika CMC MCL & E Case No 21 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1365/eng@2024-03-14

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