[2022] KEHC 1411 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

PROBATE & ADMINISTRATION APPEAL NO. 1 OF 2013

IN THE MATTER OF THE ESTATE OF THE LATE ABDULLAHI DASTA (DECEASED)

HAWA ABDILLAHI GABREISS

(Appealing as the personal representative of Amina Abdillahi Dasta Gabreiss).............APPELLANT/APPLICANT

VERSUS

RAMADHAN ABDILLAHI & 3 OTHERS..............................................................RESPONDENT/RESPONDENTS

RULING

1. The applicant herein, Hawa Abdillahi, is pursuing this appeal in her capacity as the legal representative of the estate of the original appellant in the case, the late Amina Abdillahi Dasta, who died before she could prosecute the appeal. The applicant upon taking over the appeal filed a notice of motion dated the 14th December 2020 seeking for orders that:

1. That this honorable court be pleased to admit additional evidence, being a grant of letters of administration dated 16th February, 1999 and a certificate of confirmation of grant dated 1st November, 2020 in Nanyuki Senior Magistrate’s Court succession cause no. 25 of 1998.

2. That this honorable court be pleased to call up the original court file in Nanyuki Senior Magistrate’s Court Succession Cause No. 25 of 1998.

3. That cost of this application be provided for.

2. The application was supported by the affidavit of the applicant. She deposes that there are two conflicting decisions over the estate of the deceased in this matter, the late Abdullahi Dasta Gabriess, emanating from the Kadhi`s Court Nyeri in succession cause No.6 of 2012 and from Nanyuki SRM`s succession cause N0. 25 of 1998. Therefore, that this court should admit additional evidence so as to determine the appeal with some finality.

3. The application was opposed by the respondent vide his replying affidavit sworn on the 13th January 2021 in which he deposes that the applicant has not demonstrated that the evidence sought to be introduced could not have been obtained by reasonable diligence before and during the hearing. That the evidence sought to be introduced is not credible as the certificate of confirmation Marked “HAG2” indicates that it is issued in the High Court of Kenya at Nairobi and not in the Senior Resident Magistrate`s Court at Nanyuki as alleged in the supporting affidavit. That in light of the inconsistency the evidence sought to be introduced in the appeal is neither helpful to the applicant nor to the court. That the application is an afterthought in view of the fact that it is being made 8 years after the filing of the appeal.

4. The background information to the case is that the matter was heard before the Kadhi`s court at Nyeri wherein the parties were Amina Abdillahi Dasta and Ramadhan Abdillahi. The parties were fighting over the distribution of the estate of the late Abdullahi Dasta which comprised of plot No.10 Nanyuki. The Kadhi`s court distributed the estate according to Islamic law and issued a grant of letters of administration. Amina Abdillahi was aggrieved by the decision of the Kadhi and filed the instant appeal on the 5th June 2013. The grounds of appeal were that the Kadhi`s court lacked jurisdiction to hear the succession cause as the distribution of the estate of the late Abdullahi Dasta had already been finalized in Nanyuki Senior Resident Magistrate`s Court Succession cause No. 25 of 1998 and a certificate of confirmation of grant issued. Amina Abdullahi however passed on in 2016 before she could prosecute the appeal. The current applicant/petitioner substituted her to pursue the appeal.

5. The application is brought pursuant to Article 165clause (6) and (7) of the Constitution of Kenya 2010, section 78(1) (d) of the Civil Procedure Act and Order 42 Rule 27(b) of the Civil Procedure Rules 2010.

Submissions –

6. The advocates for the applicant, J. M. Mwangi & Co. Advocates, submitted that the High Court has power under Article 165 clause 6 and 7 of the constitution to call for the record of any proceedings before any subordinate court and to make any order or give any direction it considers appropriate to ensure the fair administration of justice. That the applicant herein has annexed a grant of letters of administration and a certificate of confirmation of grant that show that the estate of the late Abdullahi Dasta Gabriess has been the subject of succession proceedings before the magistrate`s court at Nanyuki and at the same time before the Kadhi`s court at Nyeri. That the two subordinate courts have pronounced themselves with finality over the same estate. That this has left the parties in a limbo as to which of the two decisions should bide the parties. It was submitted that it is this court that has power to settle the matter by callingup and examining the proceedings in Nanyuki Succession Cause No. 25 of 1998 by dint of exercise of the powers donated by Article 165 (6) and (7) of the constitution.

7. Counsel submitted that Section 78 (d) of the Civil Procedure Act allows the court to admit additional evidence during appeal for any substantial cause.In this respect counsel cited the Court of Appeal decision in Joginder Auto Service Limited v Mohammed Shaffique & Another (2001) eKLR where the court after restating a number of principles from previous decisions held that:

“These are general principles, but we cannot say that they are the only ones. The relevant rule authorising the adduction of additional evidence uses a general phrase, namely, “sufficient reason.”

8. It was submitted that the court has discretion to take into account factors specific to this case. That the applicant in her supporting affidavit has deposed that the deceased appellant was self-representing herself during the hearing at the Kadhi`s court and was not able to appreciate the effect of the grant and its certificate of confirmation. That in case of EO V COO (2020) eKLR Aburili J. took into account that the applicant was unrepresented during the hearing at the lower court and for that reason allowed the adduction of additional evidence to produce some documents that had not been produced during the hearing. In allowing the application the judge held that:

“43. No person should be disadvantaged in his case simply because he is not literate or legally empowered with legal knowledge or is not represented by counsel.”

9. As to the credibility of the evidence in SRM`s court Nanyuki, it was submitted that the issue will be settled once the original lower court file is placed before this court.

10. The advocates for the respondent, Kimunya & Co. Advocates, on their part submitted that the elements of adducing additional evidence are clear. That the same were stated by the Court of Appeal in The Aga Khan Platinum Jubilee Hospital v Munyambu, Civil Appeal No. 18 of 1983 that there are two pre-conditions for adducing additional evidence, namely:

(1) That the evidence sought to be adduced could not be obtained with reasonable diligence during the cause of the trial, and

(2) That it will have an important influence and is credible enough.

11. The same position was restated by the same court in Dorothy Nelima Wafula v Hellen Nekesa Nielsen and Paul Fredrick Nelson (2017) eKLRin Malindi Civil Appeal No. 50 of 2016.

12. Counsel further cited the decision ofthe Supreme Court of Kenya in the case of Mohammed Abdi Mohammed v Ahmed Abdullahi Mohammed & 3 Others (2018) eKLR which laid out the principles that govern appellate courts in considering whether to grant leave to admit new evidence.

13. It was submitted that the evidence sought to be adduced was within reach of the applicant`s predecessor. That the excuse being given of illiteracy cannot be established since it was not an issue in the trial court.

14. Counsel submitted that the original appellant in her statement of defence before the Kadhi`s court admitted the jurisdiction of that court. That parties are bound by their pleadings and she cannot now turn around to depart from them for the sake of prosecuting this appeal.

15. It was submitted that the certificate of confirmation that the appellant wishes to adduce as new evidence is not credible seeing that it was issued in the High Court of Kenya at Nairobi and not in the SRM`s court at Nanyuki. That in light of the inconsistency the evidence is not helpful to the court.

16. It was further submitted that it is not denied that parties hereto profess the Islamic faith. That if this court were to find that the Nanyuki succession cause existed, counsel possed the question whether it is not those proceedings to be deemed null.

17. Counsel submitted that the application herein only seeks to derail the ends of justice to fix an otherwise weak appeal. Counsel relied on the Court of Appeal decision in Mzee Wanje & 93 Others v A.K. Saikwa (1982-1988) KLR, Civil Appeal No. 72 of 1982, where the court held that section 78 of the Civil Procedure Act does not intend to enable parties who have discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up the omissions. That if this were the case there would be no end to litigation as held by the High Court in EO V COO (supra). Counsel urged the court to dismiss the application with costs.

Analysis and determination–

18. The applicant is seeking leave of the court to adduce additional evidence in this appeal. The legal basis of the application is Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010. For ease of reference I will reproduce the said provisions.

Section 78 of the Civil Procedure Act provides as follows:

78. Powers of appellate court

(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—

(a) to determine a case finally;

(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.

(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.

19. Order 42 Rule 27 of the Civil procedure Rules, 2010, provides as follows:

(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.

20. Both advocates for the parties in their submissions have set out the principles that guide courts in deciding whether or not to admit additional evidence during appeal. The Supreme Court in Mohammed Abdi mohamud v Ahmed Abdulahi Mohamad & 3 Others (supra) elaborately dealt with the issue of adduction of additional evidence during appeal and laid out the following guidelines:

(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 influence 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 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 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 difficult or impossible for the other party to respond effectively;

(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) Whether the additional evidence discloses a strong prima facie case of willful deception of the Court;

(i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence;

(j) The Court must find the further evidence needful;

(k) A Party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case on appeal, fill up the Omissions or patch up the weak points in his/her case.

(l) The Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the Court to assess the balance between the significance 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.

[80] We must stress here that this Court even with the application of the above stated principles will only allow additional evidence on a case by case basis and even then sparingly, with abundant caution.”

21. The applicant wishes to adduce additional evidence to show that before the Kadhi`s court determined the succession cause and distributed the estate, the matter had already been determined by the SRM`s court at Nanyuki and a confirmed grant issued

22. I have carefully examined the alleged certificate of confirmation of grant, marked “HAG 2”. The same is purported to have been issued in respect to succession cause No. 25 of the High Court of Kenya at Nairobi. It is purported to be dated and signed by a judge of the High court sitting at Nairobi on the 1st November 2006. However, the sealing stamp on the document is that of the Senior Resident Magistrate, Nanyuki. In those circumstances, can the purported grant be said to be credible?

23. The applicant contends that the succession cause was at Nanyuki SRM`s Court. If that is the case she has not explained why the grant indicates that the matter was before the High Court at Nairobi nor why the grant was issued and signed by a judge of the High Court in Nairobi instead of being issued at Nanyuki. No valid court order can purport to be emanating from two courts.The document is neither credible nor is it inadmissible in a court of law. The applicant has not established that there is a confirmed grant issued by the SRM`s court at Nanyuki in respect to the estate of the deceased herein that would in one way or the other influence or impact upon the result of the appeal herein.

24. Even if the document was a genuine one, there is no good reason why the applicant`s predecessor did not avail the document during the hearing before the Kadhi. The reason being advanced that she failed to do so due to ignorance is just speculation as the deceased is not there for her to tell the court why she failed to bring the document to the attention of the court. The more plausible reason as to why the document was not produced during the hearing before the Kadhi is because it was not credible. It will not be helpful for this court to call for the file when the document in question is not admissible. It is not the duty of this court to make enquiries as to the inconsistency in the document. There is thus no basis for an order for adduction of additional evidence as prayed in the application.

25. In the premises, I find no merit in the application. The same is dismissed with costs to the respondent.

DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF MARCH, 2022.

J.N. NJAGI

JUDGE