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ELCDismissedNot stated on record (appeal arising from Ruiru CMCC No. E113 of 2020)· [2024] KEELC 6130 (KLR)

Njari v Muturi & 2 others (Environment and Land Appeal 47 of 2022) [2024] KEELC 6130 (KLR)

High Court of Kenya (Environment and Land Division, Thika)
24 September 2024
2,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court refused to allow new evidence on appeal, confirming courts won't help litigants fill gaps they should have filled at trial.

What this practically means

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Executive summary

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This is a ruling on the Appellant/Applicant's Notice of Motion dated 28 October 2022 seeking leave to adduce further evidence on appeal against the judgment of the trial court in Ruiru CMCC No. E113 of 2020 delivered on 12 May 2022. The Applicant, who had been a co-defendant with the deceased 2nd Respondent in a land dispute, sought to introduce the 2nd Respondent's death certificate, a valuation report valuing the suit land at Kshs 30M, and loan documents. She argued she was an innocent purchaser for value, that the trial court lacked jurisdiction, and that the deceased's estate was condemned unheard. None of the Respondents opposed the application, which the Court determined on its merits. Applying Section 78 of the Civil Procedure Act, Order 42 Rules 27-29, and the Supreme Court's criteria in Mohammed Abdi Mahamud, the Court rejected each item of evidence. The death certificate was a public document obtainable during trial, the Applicant having admitted at trial she knew the 2nd Respondent had died. The valuation report, procured 12 days after judgment, was an afterthought on a jurisdictional point never raised at trial. The loan documents dated 2006 had long been available. The Court further held that the bonafide purchaser claim was a new cause of action never pleaded at trial and that the Applicant had been heard on the merits, having testified in her defence. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the additional evidence (death certificate, valuation report, loan documents) meets the threshold for admission on appeal

Holding

The application fails: the evidence was obtainable with reasonable diligence, was procured post-judgment, and is meant to fill gaps and introduce a new cause of action.

Reasoning

The Court applied the Supreme Court's multi-pronged test in Mohammed Abdi Mahamud, especially sub-paragraphs (c), (i) and (j). The Applicant knew of the 2nd Respondent's death during trial, obtained the death certificate after judgment, procured the valuation report 12 days after judgment, and the loan documents dated 2006 had long been available. The defence never pleaded purchase for value, so the documents would introduce a fresh cause of action on appeal.

p. 5
02

Whether the Applicant was denied a fair hearing by the trial court

Holding

No - the Applicant testified in support of her defence and was heard on the merits.

Reasoning

The Applicant contended her right to a fair hearing was violated because the 2nd Respondent's estate was condemned unheard. The Court found on the trial record that the Applicant herself testified, and held the authority she cited (Hosea Kiplagat) irrelevant to the facts. A litigant must present her whole defence at trial and may not litigate in installments.

p. 5
03

Whether the valuation report could be admitted to attack the trial court's jurisdiction

Holding

Rejected as an afterthought; jurisdiction should have been raised at the earliest opportunity in the trial court.

Reasoning

The jurisdictional challenge, based on the suit property's alleged value of Kshs 30M, was never raised at trial and no documentary basis was placed before the trial court. The valuation report, obtained 12 days after judgment, could not be used to raise the point for the first time on appeal through the backdoor of additional evidence.

p. 5

Legal principles established

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  • Adduction of additional evidence on appeal is not automatic; the party seeking it must satisfy the multi-pronged criteria in Order 42 Rule 27 and the Mohammed Abdi principles, including that the evidence could not with reasonable diligence have been obtained at trial and that it is not meant to fill gaps in the case.
  • A party cannot introduce a new cause of action on appeal through additional evidence where it was never pleaded or counterclaimed at trial.
  • It is the duty of the party seeking to adduce additional evidence to demonstrate it was not available during the trial.

Court orders

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  1. 1.The Notice of Motion dated 28/10/2022 seeking leave to adduce further evidence on appeal is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSections 1A, 1B, 3A and 78
  • Civil Procedure RulesOrder 42 Rules 27, 28 and 29

Cases cited (5)

  • Mzee Wanje and 93 Others vs A.K. Saikwa and Others
    (1982-88) 1 KAR 462
  • Mohammed Abdi Mahamud vs Ahmed Abdullahi & 3 Others
    [2018] eKLR
  • Tarmohamed & Another vs Lakhani & Co.
    (1958) EA 567
  • Hosea Kiplagat v John Allan Okomwa
  • Elizabeth Chepkoech Salat v Josephine Chesang Chepkwony Salat
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Ruiru
Ruiru CMCC No. E113 of 2020
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules; Article 159(2) of the Constitution

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, "Njari v Muturi & 2 others (Environment and Land Appeal 47 of 2022) [2024] KEELC 6130 (KLR)", Case Analysis (2024). Not stated on record (appeal arising from Ruiru CMCC No. E113 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6130/eng@2024-09-24

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