Hapu v Parkike & another

4. The appellant further deposed that they have not delayed in ling this application and neither do they intend to delay justice and that despite the matter being certied ready for hearing, there will be no prejudice suered by either of them. 5. The 1st respondent led a replying adavit in opposition to the same sworn on June 23, 2022. The 1st respondent deposed that by May 23, 2022 when the matter had been listed for highlighting of submissions, counsel on record had already led written submissions on his behalf whereas the appellant had not led written submissions. Further that the appellant had failed to annex the material intended to constitute the supplementary record of appeal thereby concealing material facts and that without disclosure of the material made reference to, he stands to be prejudiced. Further, the appeal is against Narok CMC ELC Case No 39 of 016 and has no nexus with Civil Suit No 54 of 2013. 6. The 1st respondent further deposed that the appellant has failed to annex a letter written to court requesting proceedings or showing the relevance of the said court le or the proceedings to the instant appeal and as such the appellant has lost interest in the appeal. 7. The 2nd respondent did not le a response or written submissions. Parties agreed to dispose o the application by way of written submissions. The applicant led written submissions dated July 4, 2022.The applicant raised two issues for determination as follows:1. Whether the record of appeal is relevant. 2. Whether the respondent shall suer prejudice. 8. On the rst issue, the applicant submitted that ground 5 of his memorandum of appeal raises a legally substantive argument against an order of a court of equal status as made in CMCC 54 of 2013 and that this argument cannot be complete without placing the pleadings culminating in the decision of the lower court and that it would only make logical sense that the pleadings led be added to the record of appeal. The appellant submitted that the 1st respondent has failed to disclose that the dispute between the parties did not begin through the institution of ELC 39 of 2018 but they had been engulfed in over 8 years of litigation with all les being placed in the last le before the trial court. 9. On the second issue, the applicant submitted that there is no single provision in law that demands annexing of a supplementary record of appeal for it to be deemed proper for the benet of the court. The applicant relied on the case of Allen A Lelekuti v Samuel Thumbi [2022] eKLR. The applicant further submitted that despite making allegations that the 1st respondent has led submissions, the same was not served upon the applicant and no evidence of service has been tendered and the 1st respondent cannot therefore claim prejudice. The applicant relied on the case of Surestep Systems and Solutions Limited v Ataka Kimori & Okoth Advocates [2021] eKLR. 10. The 1st respondent led written submissions dated 4th July, 2022.The 1st respondent submitted that the applicant has not annexed the intended supplementary record of appeal to the application to demonstrate the documents it wishes to include which omission is a fundamental error since it denies the respondents and this court an opportunity to know what new documents the applicant intends to introduce. The 1st respondent relied on the case of Kenya Agricultural and Livestock Research Organisation v Leah Okoko & Another [2022] eKLR. The 1st respondent submitted that the applicant has deliberately concealed the materials intended to constitute the supplementary record of appeal and that the court ought to be aware of the intended new additional material in order to determine their authenticity and relevance to the appeal. 11. The 1st respondent further submitted that the inordinate delay in ling the instant application has not been suciently explained by the applicant. The 1st respondent relied on the case of Azim Jiwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13401/eng@2022-09-22 2

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Rajwani v Fidelity Commercial Bank (Now SBM Bank Limited) [2021] eKLR. The 1st respondent submitted that this is a clear indication that the intended supplementary record of appeal was an afterthought. 12. I have considered the application, replying adavit and the written submissions led by the applicant and the 1st respondent and the issue for determination is whether this court should grant leave to the applicant to le a supplementary record of appeal. 13. Section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules form the legal basis for this application. Section 78 of the Civil Procedure Act provides thus: 14. (1) Subject to conditions and limitations as may be prescribed, an appellate court shall have power – a) to determine a case nally; b) to remand a case; c) to frame issues and refer them for trial; d) to take additional evidence or to require the evidence to be taken;(emphasis mine) e) to order a new trial. 2. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein. Order 42 rules 27, 28 and 29 of the Civil Procedure Rules, provides that: “ (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or b) the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred, the court shall record the reason for its admission. 28. Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred. 29. Where additional evidence is directed or allowed to be taken, the court to which the appeal is preferred shall specify the limits to which the evidence is to be conned and record on its proceedings the points so specied.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13401/eng@2022-09-22 3

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15. 16. The Supreme Court in Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR laid down the following principles for allowing additional evidence: 79. “…We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows: (a) the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; (b) it must be such that, if given, it would inuence or impact upon the result of the verdict although it need not be decisive; (c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; (d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; (e) the evidence must be credible in the sense that it is capable of belief; (f) the additional evidence must not be so voluminous making it dicult or impossible for the other party to respond eectively; (g) whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; (h) where the additional evidence discloses a strong prima facie case of willful deception of the Court; (i) The Court must be satised that the additional evidence is not utilized for the purpose of removing lacunae and lling gaps in evidence. The court must nd the further evidence needful; (j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, ll up omissions or patch up the weak points in his/her case; (k) The court will consider the proportionally and prejudice of allowing the additional evidence. This requires the court to assess the balance between the signicance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” The Court of Appeal added its voice on this subject in Safe Cargo Limited v Embakasi Properties Limited & 2 Others (2019) eKLR as follows: “ “ 12. This court in discussing its power to admit additional evidence under rule 29 (1) stated as follows in Republic v Ali Babitu Kololo (2017) eKLR https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13401/eng@2022-09-22 4

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“It has been said time and again that the unfettered power of the court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a signicant impact in the determination of the appeal.” 17. The applicant in this case has averred that pleadings in Civil Suit No 54 of 2013 were led away and it was while refurbishing the oce that he came across the le in the archives and it his belief that the same would assist the court have a proper context of the issue at hand. I have perused the le and I note that the applicant wrote a letter to the Deputy Registrar dated July 14, 2020 and in paragraph 3 conrmed that they are in possession of all the documents having acquired them on June 30, 2020.If at all the applicant was keen on relying on the pleadings in Civil Suit No 54 of 2013,he would have requested for copies of the same from the court le in their hand written letter dated July 21, 2020 when requesting for copies of the proceedings. 18. The applicant submitted that the 1st respondent is not prejudiced in any way since they have not led written submissions. I have perused the le and there is the 1st respondent’s written submissions to the appeal dated May 20, 2022 and led in court on even date. In my view, the 1st respondent seems keener to dispose o this appeal as compared to the applicant and the 1st respondent will be indeed prejudiced. In any case, it the applicant’s appeal and as a matter of fact, he should have been the rst to le and serve written submissions. 19. More importantly and while placing reliance on the above two cited authorities, this court is not persuaded by the reasons of the oce organisation of the applicant’s counsel. The reasons tendered by counsel are not satisfactory to allow this court give room for ling a supplementary record of appeal. The instant application is dated June 8, 2022 close to a year of ling the record of appeal being the June 14, 2021.Most notable, the applicant has not tendered the supposed pleadings in Civil Suit No 54 of 2013.How would the court even make a nding of what is intended to be led as a supplementary record of appeal when the same has not been presented before it? The applicant is not only unfair to the 1st respondent but also to the court. This court will not therefore engage in a shing expedition to determine whether the intended supplementary record of appeal would be of assistance. 20. Arising from the above, I nd the notice of motion application dated June 8, 2022 with no merit and the same is dismissed. Costs to be in the cause. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY AT NAROK ON THIS 22ND DAY OF SEPTEMBER, 2022. HON. C.G. MBOGO JUDGE 22/9/2022 In the presence of: CA:Chuma Mr Stanley Kinyanjui for the appellant. Ms Mungai holding brief for Mr. Orege for the 1st respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13401/eng@2022-09-22 5

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