Kenga & 5 others v Kazungu & 5 others

a. That this Honourable Court be pleased to admit proceedings in Kaloleni Land Award No. 10 of 1999. b. Costs of this application be provided for. 2. The application is premised on the grounds that at the time the lower court was hearing the suit, the appellants did not have the entire proceedings; that the proceedings were secured only after the 1st appellant was sued in Malindi ELC Misc. No E026 of 2023; that the said proceedings shall shed much light on the historical ownership of the suit land which the Learned Magistrate was not privy to and lack of awareness of which led to a misdirection in her impugned judgment; that the respondents would not be prejudiced if the proceedings are admitted. It is stated that the said proceedings do not alter the proceedings in any way but help in removing all vagueness therein and they have a direct relationship with the suit. the application is supported by the sworn adavit of the 1st appellant made with authority of all the other appellants. 3. The application is opposed. The respondents led the following grounds: 4. i. That the application herein is non-starter, ill-advised and an abuse of the court process; ii. That there are no reasons given whatsoever as to why the proceedings were not availed during the trial. Further it is worth noting that the said proceedings are indeed typed but have not been signed by the Land Dispute Tribunal Panel and not certied by the Tribunal Panel hence the same cannot be relied upon as credible evidence; iii. That there is nothing to show that the award was adopted as the Judgment of the court was required under Section 7 of the Land Disputes Tribunal Act (repealed) and if it is the same Judgment; iv. That the proceedings at the tribunal were done way before the land adjudication process and therefore it is taken over by events as the same were not brought up by the applicants during the adjudication process as objections and or disputes for determination as the Land Adjudication Act cap 284 Laws of Kenya provides for elaborate Land Disputes Mechanism; v. That Emmanuel Kazungu Masha the applicant in Misc Application No. 26 of 2023 is not a party to the Primary Suit and appeal herein. Furthermore, Maitha Kenga is deceased the said applicant is not suing as an Administrator of the Estate; vi. That if the new evidence is admitted at this stage then the respondents herein will not have the opportunity to cross-examine the applicants on the same and therefore the only available remedy to the appellants is to withdraw the appeal and apply for review of the Judgment at the trial court on account of new evidence; vii. That the Appellant court therefore lacks jurisdiction to entertain this application and indeed the applicants have not invoked any particular provisions of the Law allowing admission of fresh evidence at this stage; viii. That clearly the application herein is an afterthought, vexatious and an abuse of the court process; ix. That this application is therefore frivolous, vexatious and abuse of the court process. The present application is brought under inter alia, Section 78 of the Civil Procedure Act which provides as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18709/eng@2025-05-26 2

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Powers of appellate court. 1. 2. 5. Subject to such 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; e. to order a new trial. 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 provide as follows: “ 27. (1) (2) 6. 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 judgement, 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. 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.” What remains true is that the court has a very wide discretion in determining whether or not to allow additional evidence on appeal. It all depends on the actual circumstances of the case before it. This https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18709/eng@2025-05-26 3

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is a case in which judgment was delivered in the lower court on the rights of the parties as the court perceived them to be. It is not an interlocutory appeal. In the lower court case, the appellants led the a plaint on 15/4/2021 seeking a permanent injunction restraining the respondents from interfering with the suit land on the basis that the appellants were the owners thereof with the 1st appellant holding title in his name for and on behalf of all the appellants. The defendants led defence and counterclaim pleading that both they and the appellants are of the same family lineage and that they have been in occupation of the suit land since time immemorial and they occupy distinct and separate portions of the suit property; they added that the suit land was adjudicated and both opposing sides herein at a joint family meeting nominated the 1st appellant to represent the family in the process and in eect he was appointed trustee for the whole family. It was claimed that at the objection stage the 1st appellant agreed on his own motion before the Adjudication Ocer to subdivide the land amongst the families occupying it but the appellants engaged in acts of sale. The respondents sought a declaration that the appellants held the suit land in trust, and an injunction. They also sought an order compelling subdivision of the suit property. 7. The Supreme Court has in the past in Mohammed Abdi Mohamud v Ahmed Abdullahi Mohammed & 3 Others (2018) eKLR laid down the principles to abide by in admitting new or additional evidence in an appeal as follows: “ 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 ling gaps in evidence. The court must nd the further evidence needful; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18709/eng@2025-05-26 4

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8. 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 supreme court did not state the guidelines without issuing a caution as follows: “ 80. 9. (j) We must stress here that this Court even with the Application of the abovestated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.” Having examined the grounds on which the present application is brought, I nd that of the greatest importance for the present appeal is the question as to whether “ (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;” 10. I consider this criterion to be the most important among the ones stated by the Supreme Court. This is a powerful criterion that enables a party in a suit to successfully apply for review even before a matter can reach an appellate stage. 11. At Ground No 1 at the foot of their application the appellants aver as follows: “ 1. That the appellants relied on Land Award No 10 of 1999 at the lower court to prove the genesis of their claim to the suit land herein. 2. That at the time of the hearing at the lower court the appellants did not have the entire proceedings. The appellants had only the application for execution of the decree and warrant to give possession /eviction orders.” 12. This means that the eviction warrant relied on was part of the appellant’s evidence at the lower court and it is indeed listed as document no 3 in the list of documents at page 63 of the present record of appeal. The actual warrant is at page 70 of the record of appeal. It is evidently the same document attached to the present application. It is in respect of eviction of one Kazungu Masha named the appellant in the Resident Magistrates’ Case No 10 of 1999 at Mombasa. 13. If that document was relied on at the lower court case and it gave the case number in which it was issued there would be no justiable ground upon which the appellants herein can claim that they were unable to produce the proceedings that they are now attempting to bring into the appeal as evidence. 14. It is the case that they could have by way of diligence proceeded to trace by the case number the source of that warrant and obtain the proceedings in question. In their application, they have not in any way stated that they encountered any diculties in securing the proceedings for production in the Magistrate’s court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18709/eng@2025-05-26 5

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15. The appellants have not claimed that the said proceedings were not within their knowledge at the time of the hearing of the lower court case; neither have they demonstrated that they could not have been obtained with reasonable diligence, or otherwise could not have been produced, for use at the trial before that court. 16. Therefore, whether the evidence is relevant or credible, or whether it would inuence or impact upon the result of the verdict, or remove any vagueness or doubt, this court is still of the view that it ought not be admitted if it is evident that the applicant had sucient opportunity, with reasonable exercise of diligence, to produce it at the trial in the lower court. 17. To allow the admission of the proceedings is tantamount to allow trial by way of instalments, which is not justiable at all. 18. Consequently, I nd that the application dated 10/2/2025 lacks merit and it is hereby dismissed with costs. 19. Having perused the le, I nd that the record of appeal has been completed and that the lower court le record has been availed. I therefore admit the appeal for hearing. 20. I also order that the appellant shall le and serve submissions on the appeal within 30 days from the date of this Order and the respondents shall respond thereto within 30 days of the expiry of the period granted to the appellants. The parties shall appear before this court on 18/9/2025 for issuance of a Judgment date for the Appeal. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF MAY, 2025. MWANGI NJOROGE JUDGE ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18709/eng@2025-05-26 6

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