[2022] KEHC 3065 (KLR)

JKN v SWN (Civil Appeal 32 of 2021) [2022] KEHC 3065 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3065 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 32 of 2021

LM Njuguna, J

May 11, 2022

Between

JKN

Appellant

and

SWN

Respondent

(Being an appeal against the judgment of M. N. Gicheru CM in Embu CIVIL Case No. 221 of 2017)

Judgment

1. Vide a memorandum of appeal dated on the 8. 10. 2018, the appellant herein filed an appeal having been dissatisfied with the judgment in Embu Civil Case No. 221 of 2017 and thus set out the following grounds of appeal:i)That the learned Chief Magistrate erred in law and in fact when he relied on the meaning of marriage as set out in the African Christian Marriage and Divorce Act Cap 151 Laws of Kenya which has since been repealed.ii)That the learned Chief Magistrate erred in law and in fact when he held that there was no valid marriage between the respondent and the appellant.iii)That the learned Chief Magistrate erred in law and in fact when he failed to consider that the nature of the relationship between the appellant and the respondent and the conduct of the said parties was that of a husband and wife and as such the respondent was estopped from pleading lack of capacity to enter into marriage with the appellant due to his earlier marriage.iv)That the learned Chief Magistrate erred in law and in fact when he held that the appellant was not entitled to a share of the matrimonial property.v)That the learned Chief Magistrate erred in law and in fact when he failed to consider that the appellant has spousal rights over the parcels of land in issue.vi)That the learned Chief Magistrate erred in law and in fact in failing to give the necessary weight to the appellant’s evidence.

2. The appeal was disposed of by way of written submissions which both parties filed.

3. It’s now settled that the role of the first appellate Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). The first appellate court ought not to ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings.

4. I have read through and considered the memorandum of appeal and the submissions of counsel. I have also considered the authorities referred to by each counsel to support their legal positions in the matter. Further, I have read the record and evidence adduced thereto by the appellant before the court but most importantly, the procedure that was adopted by the trial court, in “hearing” the matter.

5. This court has perused the court record and the same shows that, when the matter came up before the court for hearing, it directed the parties file submissions and thereafter the court came up with a determination.

6. It is trite that the procedure of hearing of suits and examination of witnesses is provided for in Order 18 of the Civil Procedure Rules (2010), Cap 21 Laws of Kenya. The said order is very comprehensive on how a trial should proceed in court including the recording and production of evidence. Of importance to this court is Order 18 Rules 1 and 2 which provide as follows: -(1)The plaintiff shall have the right to begin unless the court otherwise orders.(2)Unless the court otherwise orders—(1)On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.(2)The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.(3)After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.

7. In view of the above provisions, can the procedure that was adopted by the parties and the trial court be said to have complied with the procedure as laid down in the Civil Procedure Rules?

8. It is of importance to note that the law provides the mode of hearing and even if the parties agreed between themselves on how they wish the hearing to proceed, the same is a nullity since the law and practice is elaborate on how the same should be done. [See Kenneth Nyaga Mwige v Austin Kiguta and 2 others [2015] eKLR].

9. In the same vein, the Court of Appeal pronounced itself as herein below: -“Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.

10. In the case of Des Raj Sharma v Reginan[1953] EACA 210, the court held that there is a distinction between exhibits and articles marked for identification and that the term exhibit should be confined to articles which have been formally proved and admitted in evidence.

11. In this case, parties substantially deviated from the laid down procedure. This court is alive to the provisions of Order 11 and in particular Rule (7) which gives the court the discretion to order admission of statements without calling the makers as witnesses, where appropriate. The challenge this court has is; when a court exercises such discretion “how does it interrogate the veracity of the evidence contained in such statements which are produced without calling the makers?”

12. It is even more challenging when like in this case where the trial court allowed all the witness statements to be adopted without calling any of the parties or witnesses to testify. It leaves several questions unanswered given that there was need to call evidence and in this case, viva voce evidence would have been appropriate to enable the parties and the court thrash out the issues that needed be determined and to enable the trial court reach a logical conclusion.

13. It is therefore my view that, such substantial deviation from a well laid down procedure is not acceptable. [See James Njoro Kibutiri Vs Eliud Njau Kibutiri1 KAR 60 [1983] KLR 62; [1975-1985] EA 220].

14. In view of the foregoing and since the documents referred to in the list of documents were not formally produced and their veracity tested in support of the suit, coupled with the fact that the correct procedure for recording and production of evidence as laid down in Order 18 Rules 1 and 2 was not complied with, it is my humble view that the trial court fell into error as there was no trial as contemplated by the law.

15. In the end, I hold that:i)The matter be and is hereby remitted to the trial court for hearing and determination in the manner stated hereinabove.ii)No order to costs.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE.................... for the Appellant.................... for the Respondent