[2021] KEHC 5957 (KLR)
The court found that the replying affidavit by Hannington Mushera Imbayi, who was not a party to the proceedings before the lower court, could not be admitted in the appeal. The introduction of new matters or evidence at the appellate stage requires leave of the court, which was not sought or granted in this case....
Source-derived case information.
- Citation
- [2021] KEHC 5957 (KLR)
- Parties
- Appellant: Benson Musonye Musoga & Others; Respondent: The Board of Trustees, Friends Church (Quakers) Nairobi Yearly Meeting
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E207 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Objection Ruling
- Outcome
- Objection allowed; replying affidavit and annextures expunged from the record.
- Legal Topics
- Affidavit Evidence, Party Status, Introduction of New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Musonye Musoga & Others
Appellant
The Board of Trustees, Friends Church (Quakers) Nairobi Yearly Meeting
Respondent
Procedural Posture
Civil Appeal / Interlocutory Objection Ruling
Legal Issues
- 1 Whether a replying affidavit sworn by a non-party can be admitted in an appeal.
- 2 Whether new evidence or matters can be introduced at the appellate stage without leave of court.
Ratio Decidendi
The court found that the replying affidavit by Hannington Mushera Imbayi, who was not a party to the proceedings before the lower court, could not be admitted in the appeal. The introduction of new matters or evidence at the appellate stage requires leave of the court, which was not sought or granted in this case. The court further held that the relevant provisions cited by the applicant and respondent (Sections 78 and 79 of the Civil Procedure Act, and the Court of Appeal Rules) were not applicable to the objection at hand. Consequently, the objection was upheld and the replying affidavit, together with its annextures, was expunged from the record.
Court Disposition
Objection allowed; replying affidavit and annextures expunged from the record.
Orders
- The replying affidavit by Hannington Mushera Imbayi sworn on 7th June 2021 and annextures HMI 1, 2, 3 & 5 are expunged from the record.
- Application to proceed to hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. E207 OF 2021
BENSON MUSONYE MUSOGA & OTHERS...............................APPELLANT
VERSUS
THE BOARD OF TRUSTEES, FRIENDS
CHURCH (QUAKERS) NAIROBI YEARLY MEETING.........RESPONDENT
RULING
1. The Appellant/Applicant’s counsel M/s Wambulwa has while relying on Section 78 of the Civil Procedure Act and Section 29 of the Court of Appeal Rules objected to the Replying affidavit of one Hannington Mushera Imbayi. The reason being that the said deponent has never been a party to the proceedings and the annextures were being introduced at this stage.
2. Mr. Aswani for the respondent opposed the objection and submitted that the Court of Appeal Rules were inapplicable to this case while section 79 Civil Procedure Act was irrelevant. He defended the filing of the replying affidavit saying it was responding to the assertion by the appellants that there no meeting held.
3. First and foremost Section 78 or Section 79 Civil Procedure Act are not relevant to the objection raised by the appellant.
4. Secondly the Court of Appeal Rules are also not applicable to this appeal.
5. Thirdly it has not been denied by the Respondent that Hannington Mushera Imbayi is not a party in the proceedings before the lower court. The matter before me is an appeal and if any new matters have to be introduced it must be with the leave of the court. Whatever Hannington purports to tell the court must have been stated by those representing the Respondent herein. He cannot be introduced to the court through the Replying affidavit.
6. I therefore allow the objection raised and expunge from the record the Replying affidavit by Hannington Mushera Imbayi sworn on 7th June 2021 plus the annextures (HMI 1, 2, 3 & 5). Application to proceed to hearing.
Delivered online, dated and signed this 16th day of June, 2021.
H. I. ONG’UDI
JUDGE
In the presence of:
Ubah Adan – Court Assistant
Mr. Aswani for Respondent
M/s Wambulwa for Applicant