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ELCAllowedNot stated in judgment· [2024] KEELC 4225 (KLR)

Kamaru v Gikuhi & another (Environment and Land Appeal E070 of 2022) [2024] KEELC 4225 (KLR)

High Court of Kenya
9 May 2024
JKJ G Kemei
2,193 words in judgment
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The bottom line

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Kenya's High Court allowed new land ownership documents on appeal because they were central to the case and couldn't have been found earlier.

What this practically means

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Executive summary

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This is a ruling of the High Court at Thika (J G Kemei, J) on a Notice of Motion dated 23/5/2023 by Peter Kimani Kamaru, the Applicant in an appeal against a trial court judgment concerning ownership of land Title Number Ruiru West/Block 1/17xx. The Applicant, proceeding by way of appeal, sought leave under Order 42 Rule 27 of the Civil Procedure Rules and Sections 3A and 78(1) of the Civil Procedure Act to adduce additional documentary evidence: a letter from the Commissioner of Lands dated 17/12/1990, a Memorandum of Registration of Transfer of Lands dated 4/1/1991, and a lease issued to Emily Njeri Kamaru, his deceased mother, through whom he claims title. He explained that Emily died in 2008 without leaving copies of the documents, which were only certified in May 2023, so they could not be obtained at trial despite due diligence. The Respondent, James Maina Gikuhi, who succeeded at trial, opposed, arguing the application was an attempt to patch up the case and would prejudice him. The court identified a single issue: whether the Applicant met the criteria for admitting additional evidence on appeal. Applying Section 78, Order 42 Rules 27-29, and the Supreme Court's principles in Mohamed Abdi Mahamud, the court found the documents directly relevant to ownership of the suit land, unobtainable with reasonable diligence, credible, and non-voluminous, and found no demonstrated prejudice since the Respondent would be permitted to reply. The application was allowed with the Respondent granted 14 days to file a rebuttal; costs were awarded payable by the Applicant.

Key legal issues

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Whether the Applicant met the threshold for admitting additional documentary evidence on appeal under Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules

Holding

The application was allowed; the documents were relevant to ownership of the suit land, could not have been obtained with reasonable diligence as Emily Njeri Kamaru died in 2008, and no prejudice would be suffered by the Respondent.

Reasoning

The court applied the Supreme Court criteria in Mohamed Abdi Mahamud on additional evidence: relevance, influence on outcome, inability to obtain the evidence with reasonable diligence at trial, credibility, and absence of prejudice. The documents relate to the root of title of the suit land, the central question on appeal. Their unavailability was explained by the deceased's failure to leave copies and their certification only in 2023. The Respondent did not articulate any concrete prejudice, and would have 14 days to respond in rebuttal.

p. 5

Legal principles established

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  • The adduction of additional evidence on appeal is not automatic; the appellate court must be satisfied the evidence is required to enable it to pronounce judgment or for other substantial cause, and the discretion must be exercised judiciously within the confines of the law.
  • Additional evidence relevant to the central issue in the appeal will be admitted where no prejudice is demonstrated and the opposing party retains an opportunity to respond.

Court orders

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  1. 1.Leave granted to the Applicant to adduce additional documentary evidence on appeal
  2. 2.Certified copies of the Letter from the Commissioner of Lands dated 17th December 1990, Memorandum of Registration of Transfer of Lands dated 4th January 1991, and Lease issued to Emily Njeri Kamaru dated 14th December 1990 admitted onto the record
  3. 3.Upon service, the Respondent shall have 14 days to file his response by way of affidavit and adduce such documents in rebuttal
  4. 4.Costs payable by the Applicant
On appeal from
Trial Court (not specified in judgment)
Not stated in judgment
Jurisdiction invoked
Order 42 Rule 27 of the Civil Procedure Rules and Sections 3A and 78(1) of the Civil Procedure Act

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, "Kamaru v Gikuhi & another (Environment and Land Appeal E070 of 2022) [2024] KEELC 4225 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4225/eng@2024-05-09

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