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ELCDismissed· [2024] KEELC 5729 (KLR)

Kipkulei v Musk Deer Limited & another (Environment & Land Case 1 of 2019) [2024] KEELC 5729 (KLR)

Environment and Land Court of Kenya
29 July 2024
8,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~32 min to read original · ~4 min brief

The bottom line

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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 Mombasa (Naikuni J) on a Notice of Motion dated 11th February 2011 by Benjamin K. Kipkulei, the Appellant in an appeal against a 4th October 2007 ruling of Resident Magistrate M.K. Mwangi upholding a preliminary objection. The application, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, sought admission of affidavits of G.K. Meenye (advocate) and Peter Kinyua (auctioneer) as additional evidence in the appeal. The 1st Respondent opposed through grounds of opposition and a replying affidavit of Amritlal Purshottam Bhimij Devani, contending the affidavits arose from a CID criminal inquiry into misappropriation of sale proceeds, were not part of the appeal, and were a collusive abuse of process designed to strengthen a weak appeal. Both parties filed written submissions, highlighting matters in May 2024. Applying Section 78 of the Civil Procedure Act, Order 42 Rule 27, and the Ladd v Marshall/Tarmohamed v Lakhani principles as restated in Mzee Wanjie v Sakwa and Mohamed Abdi Mahamud, the court held there were no exceptional circumstances: the affidavits added no probative value to the appeal on the preliminary objection, were not new evidence having always been in the appellant's possession, and the application was merely an attempt to strengthen the appeal. The application was dismissed. Notably, despite finding costs follow the event, the court declined to award costs, giving no orders as to costs. The court further directed that the long-pending appeal be mentioned on 17th October 2024 for directions under Section 79B, heard on 11th December 2024, and that judgment be delivered on 30th January 2025.

Key legal issues

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01

Whether the affidavits of G.K. Meenye and Peter Kinyua Muchendu should be admitted as additional evidence at the appellate stage

Holding

The application lacked merit and was dismissed; the affidavits were inadmissible as they added no probative value, were not new, and did not touch on the substratum of the appeal.

Reasoning

The court applied Section 78 of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules and the Tarmohamed v Lakhani/Ladd v Marshall principles as restated in Mohamed Abdi Mahamud. It found the affidavits stemmed from a CID criminal inquiry into misappropriated sale proceeds, not the legality of the sale; they were in the appellant's possession at the time of hearing; and there were no exceptional circumstances. The appeal concerned a preliminary objection, which requires no evidence.

p. 15
02

Costs of the application

Holding

No orders as to costs, despite the principle that costs follow the event.

Reasoning

Costs are discretionary and ordinarily follow the event, per Harun Mutwiri v Nairobi City County Government and Hussein Muhumed Sirat v Attorney General. The successful 1st Respondent would normally get costs, but the court exercised its discretion not to award any.

p. 15

Legal principles established

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  • Leave to adduce additional evidence on appeal is discretionary, governed by the exceptional-circumstances rule, and the power must be exercised sparingly and with great caution.
  • Additional evidence may not be used to patch up weak points or fill gaps in a case on appeal.
  • Costs follow the event, being discretionary in the court.

Court orders

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  1. 1.The Notice of Motion application dated 11th February, 2011 by the Appellant be and is hereby found to lack merit, thus dismissed with no orders as to costs
  2. 2.The pending appeal to be heard on 11th December, 2024, with a mention on 17th October, 2024 for directions on disposal of the entire appeal pursuant to Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
  3. 3.The Honourable Court to render its Judgement on 30th January, 2025
  4. 4.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 78, 79B, 27(1)
  • Civil Procedure Rules, 2010Order 42 Rule 27; Order 42 Rules 11, 13 and 16
  • Constitution of Kenya, 2010Article 40
  • Appellate Jurisdiction ActRule 29

Cases cited (13)

  • Mohamed Abdi Mahamud v Ahmed Abdulahi Mohamed & 3 others
    [2018] eKLR
  • Nayan Mansukhlal Salva v Hanikssa Nayan Salva
    [2019] eKLR
  • Mukisa Biscuits Co. Ltd v West End Distributor Ltd
    [1969] EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • Fibre Link Limited v Star Television Production Limited
    [2015] eKLR (CA 172 of 2012)
  • Tarmohamed & Another v Lakhani & Co
    (1958) EA 567
  • Ladd v Marshall
    (1954) 1 WLR 1489
  • Walter Joe Mburu v Abdul Shakoor Sheikh & 3 Others
    Civil Appeal No. 195 of 2002 [2015] eKLR
  • Mzee Wanjie & 93 others v A. K Sakwa & others
    (1984) KLR 275
  • General Parts (U) Limited v Kunnal Pradit Kariaca
    No 26 OF 2013 UCA
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
On appeal from
Magistrate's Court (Chief Magistrate's Court), Mombasa
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21 and Order 42 Rule 27 of the Civil Procedure Rules, 2010; appeal against ruling in Civil Appeal from the Magistrate's Court

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, "Kipkulei v Musk Deer Limited & another (Environment & Land Case 1 of 2019) [2024] KEELC 5729 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5729/eng@2024-07-29

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