Kipkulei v Musk Deer Limited & another (Environment & Land Case 1 of 2019) [2024] KEELC 5729 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the affidavits of G.K. Meenye and Peter Kinyua Muchendu should be admitted as additional evidence at the appellate stage
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.
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.
Costs of the application
No orders as to costs, despite the principle that costs follow the event.
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.
Legal principles established
#- 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
#- 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.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.The Honourable Court to render its Judgement on 30th January, 2025
- 4.There shall be no orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.