[2013] KECA 43 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & J. MOHAMMED JJ.A

CIVIL APPEAL NO. 238 OF 2013

BETWEEN

ESTHER NJOGU…………………………………………………1ST APPELANT

DAVID NDUNG’U NJUGUNA………….......…….……...............2ND APPELLANT

AND

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION…………….......………….......…RESPONDENT

(Appeal from the Judgment and Order (findings and holdings) of the High Court of Kenya at Nairobi (Majanja, Mumbi & Korir, JJ.) dated 12th July, 201 in

Petition No. 238 of 2013)

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RULING OF THE COURT

This application, which is by way of Notice of motion, is brought under the provisions of rules 29, 42 and 43 of this Court’s Rules, and prays that this Court takes additional evidence from the appellants/applicants in the appeal. The evidence sought to be adduced is the 8th interested party’s pay slip with the Teachers Service Commission (T.S.C.). The mode of introducing such additional evidence is by way of an affidavit deponed by the appellants/applicants to which the said pay slip would be annexed.

The application is based on the grounds which are in the body of the application, that the fact of the employment of Nancy Wambui Mwaura (the 8th interested party) by the T.S. C. at the time of her nomination to the Nyandarua County Assembly was in issue at the hearing of Petition No. 238 of 2013 before the High Court; that at the time of hearing of the petition, the appellants upon exercise of due diligence could not access documentary evidence to prove that the said Nancy Wambui Mwaura was in the employment of the T.S.C. at the material time, which difficulty is attributed to the fact that the documents were in the custody and possession of the said Nancy Wambui Mwaura and the T.S.C; that the appellants have now obtained that evidence in the nature of a copy of a pay slip for the month of May, 2013 for the said Nancy Wambui Mwaura which goes to prove that she was drawing a salary from the T.S.C. at the time of her nomination; that this evidence is very crucial to the fair and just determination of this appeal which is a matter of public interest; that none of the parties herein will be prejudiced by the admission of this additional evidence; that the said Nancy Wambui Mwaura was aware of the proceedings before the High Court and also this appeal and will have an opportunity to challenge that evidence; that it is in the interest of justice and fairness that the evidence be admitted to establish the truth and to uphold the law and public interest.

The application is also supported by an affidavit of Esther Njogu. She depones, inter alia, that this appeal emanates from the findings and holdings of the High Court at Nairobi in Petition No. 238 of 2012; that one of the issues for determination before the High Court was whether Nancy Wambui Mwaura was at the time of her nomination a teacher and an employee of the T.S.C. The deponent further reiterates that at the hearing of the petition before the High Court and upon exercise of due diligence , she could not avail documentation or evidence to prove that indeed the said Nancy Wambui Mwaura was indeed an employee of T.S.C. since such documents were in the custody of the said Nancy Wambui Mwaura and T.S.C. at the time of her nomination and were not easily accessible to the deponent; that she has subsequent to the lodging of this appeal obtained a copy of a pay slip of the said Nancy Wambui Mwaura for the month of May, 2013 clearly indicating that the said Nancy Wambui Mwaura was drawing a salary from the T.S.C. as at the time of her nomination to the Nyandurua County Assembly. The deponent adds that, she believes that the evidence is crucial to the fair and just resolution and determination of the appeal which is litigation in the public interest. The pay slip sought to be introduced has been annexed to the supporting affidavit as an exhibit. It bears the names of the 8th interested party. It was issued by the T.S.C. for the 8th interested partys’ salary for the month of May, 2013.

In his oral submissions, Mr. Gachau, learned counsel for the applicant, urged us to allow the application. He reiterates the contents of the grounds in the body of the application as well as the depositions in the supporting affidavit.

The application has been opposed on points of law by the respondents. Miss A.O. Ameyo, learned counsel for the respondents on the other hand has urged us to dismiss the application on the grounds that, there has been no demonstration of efforts made by the applicants to have the document sought to be introduced placed before the High Court; that the applicant has made no efforts to get the T.S.C. to confirm the content of their averments; that it will be unfair and prejudicial to the respondents if this Court were to allow the introduction of the said document as evidence as the respondents were not given an opportunity to comment on it at the High Court level.

The application has also been opposed by the contents of the replying affidavit deponed by the 8th interested party, Nancy Wambui Mwaura, deponed on the 4th day of December, 2013 and filed on the 5th day of December, 2013. She averred that from the reliefs sought in the petition directed to the High Court dated the 8th day of May, 2013 as set out at paragraph 3 of the said replying affidavit, the issue before the High Court did not include the employment of Mrs. Nancy Wambui Mwaura; that the appellants/applicants did not adduce any evidence before the High Court regarding the employment of Nancy wambui Mwaura; that it is her contention that she resigned in time to qualify for the nomination; that both she and the High Court have been denied the benefit of information by way of viva voce evidence on the issue now being raised by the appellants/applicants; that evidence which the appellants/applicants purport to belatedly adduce was in the custody of the T.S.C, a public body which could have availed that information upon request; that there is no demonstration that the appellants/applicants ever made any efforts to access that information from the T.S.C. Lastly, that the application is un founded and devoid of merit and should be dismissed.

In his oral submissions to Court, learned counsel for the interested parties reiterated the contents of the 8th interested party’s replying affidavit and urged us to dismiss the application. He added that the appellants/applicants have not sufficiently explained the circumstances under which they failed to lay hands on the evidence sought to be adduced belatedly; that the appellants failed to act with due diligence in seeking out the said evidence and they should not be indulged. They also contend that allowing the evidence sought to be introduced will be highly prejudicial to the 8th interested party as it does not give her an opportunity to demonstrate that she had already resigned from the employment of the T.S.C as at the time of her nomination.

In response to the submissions of Miss A.O. Ameyo and Mr. Auma, Mr. Gachau maintained that their application is meritorious and should be allowed; that they made efforts to obtain the said information although this has not been documented; that the issues sought to be raised by the evidence intended to be adduced were before the High Court, but the High Court declined to rule on them. He reiterateD that if indeed the 8th interested party had resigned from her job as asserted then, nothing would have been easier than for her to attach to her replying affidavit her resignation letter as well as proof that the T.S.C. had acted on the said resignation and when that action took place. Lastly that the 8th interested party was cited in the High Court proceedings but she chose not to participate in the said proceedings.

Rule 29 (1) (b) and (2) provides;-

“(1) On any appeal from a decision of superior court acting in the exercise of its original jurisdiction, the Court shall have power…

(b) In its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.

(2) When additional evidence is taken by the Court, it may be oral or by affidavit and the Court may allow –cross examination of any deponent”

In the case of Karmali Tarmohamed versus Lakhani [1958] EA 567 at page 574 Sir Kenneth O’ Connor, P. stated:-

“The principles upon which an appellate court should admit fresh evidence where the application is not made on the grounds of fraud or surprise are not , I think, in doubt. I take the following passage from the Judgment of Denning, L.J. in Ladd versus Marshall [1954] 1, W.L.R. 1489, at page 491:

To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that if given, it would probably have an important influence on the result of the case though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”

In the Administrator HH the Aga khan Platinum Jubilee Hospital versus Munyambu [1985] KLR 127, this Court held, inter alia:-

“In exercising its discretion to grant leave to adduce additional evidence under rule 29 (1) (b) of the Court of Appeal Rules, the Court of Appeal will generally give such leave if the evidence sought to be adduced could not, with reasonable diligence, have been obtained for use at the trial, if it will probably have an important influence on the result of the appeal and is apparently credible though it need not be incontrovertible. Such evidence will be admitted if some assumption basic to both sides has been clearly falsified by subsequent events and where to refuse the application would affront common sesce or a sense of justice”

The above two cited decisions were approved by this Court in similar applications in Africanline Transporters Co. Limited versus Hon. Attorney General Mombasa CA ( Application) No. 159 of 2007 and John Wagura IKiki and 3 others versus Lee Gachuiga Muthogo Nyeri CA (Application) No. 196 of 2009.

In John Wagura Ikiki and 3 others versus Lee Gachuiga Muthoga (Supra) the Court went on to make the following observation:-

“The discretion of the Court is therefore not unfettered, since the applicant must demonstrate “sufficient reason.” Sufficient reason as stated by the predecessor of this Court “May not be as stringent requirement as “special reason” but adequate reason must still be shown before this Court can exercise its discretion – See the Commissioner of Transport versus the Attorney General of Uganda & Anor [1959] EA 329 at page 333…

It was further stated that “all along, the principal rule has been that there must be exceptional circumstances to constitute sufficient reason for receiving fresh evidence at this stage”

With those guiding principles in mind , we must, test firstly, whether it has been shown that the intended evidence was not available at the time of the trial , or could not with reasonable diligence have been procured, even before we examine whether it would have an important influence on the result of the appeal or is credible. See John Wagura Ikiki & Another versus Lee G. Muthoga (Supra).

The evidence sought to be introduced is a pay slip issued by the T.S.C. in the name of the 8th interested party. It is for the month of May, 2013.

Briefly, the genesis of the dispute has its roots in Constitutional Petition Number 147 of 2013 presented by the National Gender and Equality Commission against the IEBC and the Attorney General. Among others, the Petitioners sought to compel the IEBC to put in place mechanisms to resolve any disputes concerning the lists in accordance with Article 88(4) of the Constitution as read with Section 74 of the Election Act. In compliance with the Court order in the Petition aforementioned, a dispute resolution committee was set up by the IEBC.

The appellants presented their complaints to the said complaints committee. That of the first appellant, Esther Wanjiku Njogu, was registered as IEBC/DRC/PL/86/2013. The issue was whether the list submitted by TNA met the requirement of Section 36 (1) (e) and 36(2) of the Elections Act, 2011 and Article 81(d) of the Constitution.This complaint was dismissed on the grounds that the provisions of law had been followed on nomination.

The complaint of the second appellant, David Ndungu Ndegwa, was registered as IEBC/DRC/PL/187/2013. The issue was whether the nominee one, Daniel Mwangi Ndungu was disabled. This complaint too was dismissed on account of lack of evidence to prove the allegation.

The decision of the complaints committee gave rise to the filing of Petition number 238 of 2013 whose decision was rendered on the 12th day of July, 2013. The decision giving rise to this appeal emanates from the proceedings which had commenced on 9th day of May, 2013 and concluded on 4th day of July, 2013. As at the start of the proceedings in the High Court, the document sought to be introduced had not been generated. It had, however, been generated as at the time the judgment sought to be impugned had been rendered. The 8th interested party has not categorically disowned this pay slip. Neither is there anything from the T.S.C. suggesting that this pay slip was not generated by them. We therefore have no reason to doubt its authenticity.

Mr. Gachau for the appellants/applicants submitted that although there is no documentation, they had made efforts to get the information to no avail. In the absence of evidence proving such efforts, there is nothing that we can base a finding on, that indeed such efforts were ever made. Although we appreciate that the May, 2013 pay slip for the 8th interested party had not been generated as at the time the proceedings in the High court took place, we do not rule out the possibility of existence of other similarly generated pay slips with regard to the 8th interested party which could have been sourced by the appellants/applicants to serve their intended purpose.

It is however apparently clear that the eligibility of the 8th respondent as T.N.A representative to the Nyandarua County Assembly has been central in all the forums where the disputes relating thereto had been adjudicated. Evidence which tends to prove that she was not eligible for such nomination is therefore crucial to the determination and disposal of the pending appeal.

The above finding not withstanding, we also have to consider whether the introduction of the said additional evidence is likely to impact on the ultimate outcome of the decision on the pending appeal. We have no doubt that it will, in so far as the eligibility of the 8th interested party as a nominated party representative to the Nyandarua County Assembly is concerned.

It therefore follows that, although we are not convinced that there is sufficient demonstration that efforts were made by the appellants/applicants to access other similarly generated evidence like the one sought to be introduced and place them before the High Court, nonetheless the very fact that the evidence is crucial and authentic is sufficient to excuse the lack of diligence on the part of the applicant in obtaining similar evidence earlier on. We are, in the premises, inclined to allow the appellants/applicants application and direct that:

1. Leave be and is hereby granted to the appellants/applicants to adduce the annexed pay slip of May, 2013 in the name of the 8th interested party as additional evidence.

2. The said additional evidence shall be adduced by way of affidavit evidence deponed by the first appellant/applicant annexing it as an exhibit.

3. The said affidavit to be filed and served within seven (7) days of today's date.

4. Since its authenticity has not been called into question, there will be no order for cross-examination of the deponent.

5. The costs of this application shall be in the appeal.

Dated and Delivered at Nairobi this 20th day of December, 2013

R.N.NAMBUYE

……………..….……….

JUDGE OF APPEAL

D.K.MUSINGA

……………………….

JUDGE OF APPEAL

J. MOHAMMED

……………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original

DEPUTY REGISTRAR

D/O