[2017] KEHC 9204 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MILIMANI LAW COURTS

H.C.C.A NO. 7 OF 2016

JOHNSTONE KASSIM MUUMBO…….……1ST APPELLANT/APPLICANT

ALEX MUNYASA MUUMBO……….....……..2ND APPELLANT/APPLICANT

CAROLYNE KALUNDE MUUMBO……...…..3RD APPELANT/APPLICANT

VERSUS

ALEX MUNYASA MUUMBO……….………..…………..1ST RESPONDENT

CAROLYNE KALUNDE MUUMBO……………………..2ND RESPONDENT

RULING

1. There are two applications for consideration before this court. The application dated 14th June 2016 and the application dated 31/10/16.

2. The applicants/ appellants hereinafter referred to as the applicants in application dated 14th June 2016 seek the following orders;

i. That the court does allow the applicants to be allowed to produce additional evidence during the hearing of the appeal.

ii. Cost of the application be provided for.

The application is brought under Section 1A and 3A, order 42 Rule 27(1) (b) and Order 51 Rule 1 of the Civil Procedure Rules. The application is based on grounds that the evidence to be adduced was not in possession of the applicants at the time of hearing in the subordinate court matter CMCC 3773 of 2015. That during trial the respondents adduced evidence that surprised the plaintiffs/applicants and they could not counter the questionable piece of evidence since they had closed their case. That the evidence to counter the defendant’s questionable evidence became available after the magistrate had pronounced judgment. That the availability of the evidence was beyond the control of the appellants and could not therefore be produced at the appropriate time. That the evidence in question is material and therefore essential for the court in determining the issues raised in Appeal and therefore essential for the court to allow the evidence as the same will assist the court greatly in determining the Appeal and delivery of justice adding that no party will suffer prejudice if the court allows the application.

3. In the application dated 14/6/16 the applicant seeks to adduce additional evidence during the hearing of the appeal. The application is supported by the affidavit of Carolyn Kalunde Muumbo dated 14th June 2016. She avers as follows; that she and her co-appellants/applicants have filed an appeal and wish to produce additional evidence in support of their appeal. That during the hearing in the subordinate court, the defendants produced a copy of a sale agreement which was disputed since the document was not similar with a document which the deceased had filed in previous proceedings. That in view of this development they were surprised by the evidence produced since the origin of the document was questionable hence had to get the correct information in regards to the disputed piece of land from the relevant government authorities as the Trial Court had dispensed with the pre-trial procedures on its own motion. That it was difficult to challenge the authenticity of the documents since they had closed their case and also they were yet to receive the correct information in respect to the piece of land from the relevant ministry. That during the trial they were unable to produce two letters emanating from the Ministry of Lands, Housing and Urban Development both dated 18th January, 2016. That they received the letters after the judgment had been delivered on 13th January, 2016 hence the Magistrate could not rely on the evidence neither could they use it during the hearing of the suit. That as soon as they got the documents they brought them to the attention of the court vide an application for stay of execution dated the 20th January 2016 through his supplementary affidavit. that the evidence to be adduced forms part of the subordinate court record and that it was necessary to avail the evidence since ownership of the parcel of land where the deceased is to be laid to rest according to the Magistrate’s judgment is in dispute hence the need to clarity the issue of ownership. That the evidence is crucial to determine the burial dispute since it determines the ownership of a parcel of land which the Magistrate Court filed that it is where the deceased body should rest. That it was difficult to ascertain the ownership of the said parcel of land since the government has not issued titles and the only way to get information is to write to the relevant ministry. That they had no control of the preparation and availability of the documents from the government office and they had to wait, but the circumstance was beyond their control. That the production of the evidence will not in any way delay the hearing for the appeal or disposing the matter expeditiously nor will it prejudice any party as the respondents are aware that the documents exist and the same will in fact help the court in delivery of justice.

4. Billy Mbuvi Muumbo the 1st respondent filed a further replying affidavit dated 14th December 2016. He depones that on the ongoing proceedings in Succession Cause 1673 of 2015 (Estate of Timothy Mwandi Muumbo) the 3rd appellant in her answer to petition for a grant dated 14th September 2016 and in her affidavit in support for letters of administrations deposed on an even date therein stipulates the property known as Plot 1498 situated in Mbakini, Mwingi, Kitui county as one of the assets belonging to the deceased Timothy Mwandi Muumbo. He further depones that in reference to the letter the appellants seek to produce the subject property as averred does not belong to Edward Muumbo and that the adjudication officer did not have any jurisdiction whatsoever to have issued the letter dated 18th January 2016 as the adjudication and settlement office had ceased jurisdiction upon the completion of the adjudication process.

5. The 1st and 2nd respondent filed the application dated 31/10/16. It is brought under Section 1A, 1B, 3A, 63 (e ) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules. They seek the following orders that;

i. This honorable court be pleased to order that the appellant/ respondent supplementary record of appeal dated 07/06/2016 and filed herein on the 8/06/2016 be expunged from the Court’s record in terms of pages 2-432. Further supplementary record of Appeal in terms of pages 15-21.

ii. That the Honorable Court be pleased to order that the replying affidavit sworn by Caroline Muumbo on 18th February 2015 in ELC no. 193 of 2014 Machakos – Johnstone Kassim Muumbo vs Timothy Mwandi Muumbo be included in the record of appeal herein.

iii. That the court make such orders as it deems fit.

6. The application is based on grounds that the documents attached on the supplementary record of appeal dated 7/6/16 and filed on 8/6/16 were not relied on in the proceedings at the lower court (CMCC 3773 of 2015) more specifically pages 2-435 the said fact was out rightly admitted by the counsel in court before Justice Ougo on 22nd September 2016. That in light of the above the documents contained the afore stated pages ought to be struck out of the court’s record as admission of the same would be tantamount to adducing new evidence at the appeal court without leave. That the replying affidavit sworn by the 3rd appellant on 18th February 2015 in ELC no. 193 of 2014 – Machakos Johnstone Kassim Muumbo & Others vs- Timothy Mwandi Muumbo has been excluded from the record of appeal and the same ought to be included in the record of appeal to assist the court reach a fair decision to all parties concerned.

7. Harrison Musyoka Lusyola in his supporting affidavit reiterated what is stated in the grounds in support of the respondents application. He also filed a further affidavit dated 10th December 2016 stating that the affidavit of Carolyn Muumbo of 18/02/15 was heavily relied on in the lower court’s proceedings by the respondents. That the said affidavit was produced in the lower court proceedings as DEXH. 4(b) and is also captured in the judgment delivered by Hon. P Muholi R.M. which is annexed on the record of appeal filed herein on the 8th day of June 2016, on page 813 and 814.

8. Carolyn K. Muumbo filed a replying affidavit dated 9th December 2016 in response to the respondents application dated 30th October 2016. She avers that respondents made reference to the said documents and even the Trial court had an opportunity of looking at the documents for comparison as clearly reflected in the court proceedings at page 822 of the record of appeal. This was during the cross examination of the 1st respondent/ applicant who readily admitted that the document/copy of the sale agreement her co-appellants/ respondents and she had produced was similar to one contained in that bundle, whereas theirs was different. That the subordinate court record clearly reflects that the parties referred to the said documents and including the same does not amount to adducing new evidence. That it is important that this court does also have an opportunity to see the said documents which have been included in the Supplementary record of appeal. That she never swore a replying affidavit as alleged in ELC No. 193 of 2014 in the High Court of Kenya at Machakos neither did they rely on the said replying affidavit. That the only replying affidavits in ELC Case No. 193/2014 relied upon by her Co-appellants/respondents and during trial were those clearly indicated at page 790 of the record of appeal i.e the replying affidavits sworn by their late father dated 06. 02. 2015 and 23. 03. 2015 and the same were marked as plaintiff exhibit no. 7. That the documents at page 15 to 21 in the Further Supplementary Record of Appeal were produced as a bundle along with the other documents relating to HCCC. No. 39 of 2010 and the said bundle was marked as plaintiff exhibit no. 12 as clearly indicated in the proceedings at page 788 of the Record of Appeal and as such, she urges the court not to grant the prayer sought.

9. At the hearing of the application the counsel for the applicant reiterated what is in the affidavits . She submitted that she got the documents in issue on the 18th of January 2016 after the lower court delivered the judgment on the 13th of January 2016. That he documents and material will help the court determine the issue at hand and the main issue which was at the trial court on who was the owner of the land. That the trial court did not look at the two documents that were presented and that the appellants only got the documents which confirm the ownership of the land after judgment. According to the applicant the evidence did not lead to a rehearing. The applicant submitted that the succession cause no. 1673 of 2015 is still on going and the parties can amend their pleadings and that the petition is not conclusive to show that the land belong to the deceased. The applicant sought to have paragraph 3 of the affidavit Billy Mbuvi Muumbo struck off for reasons that the alleged letter BMM2 is not attached to the affidavit therefore the averment that the respondents have a letter which confirms that the property does not belong to Edward is not truthful.

10. On the application to expunge it was submitted that the plaintiff did produce and extract of the sum said documents page 92 of 108 which comprised the sale agreement and petty cash indicating they belong to Edward Muumbo and that the respondent produced a similar agreement. That in view of dispute they have decided to list the document in the Originating summons so that the court can look at both sale agreement. That the lower court did not make a decision on them. That the requirement of order 11 was dispensed with and the trial in the lower court was a trial by anguish. That there is an element of fraud and this makes them fall under the purview of order 49 (2). The respondent produced the sale agreement after they produced their case. The documents in O.S No. 39 of 2010 are included as their exhibit 12 in the lower court and they should not expunge. The appellants urged the court to dismiss the application 30th October 2016. They distinguished the authorities cited by the respondents.

11. The respondents argued that order 42 rule 27 is very clear. That the evidence the applicant is seeking to adduce do not fall under the ambit of the said rule. That the court has a wide discretion on when additional evidence can be adduced. The court can consider whether the parties exercise diligence during the trial. That in this case the appellant alluded that the land does not belong to the decease and it was for them to find evidence to the effect and they did. They produced a sale agreement showing the land did not belong to the deceased. At paragraph 20 at the record of appeal, they submitted they have enough evidence that the land belongs to Edward. They now want to repatch their case. They should have obtained the evidence then and not have demonstrated the steps they took. The court therefore should not exercise it discretion on their favour. The second thing that the evidence should have importance influence. It was argued that the appellant submitted that the land belongs to Edward Muumbo who is now deceased and that so far no objections have been raised. On the third limp that the evidence must be credible the third appellant in the further affidavit listed the land known as Mbakini as the deceased asset. That they deponed on the 15/12/2016 that there was no amendment to the cross petition and say that the land belongs to someone else yet they claim it. This evidence is contradictory. That 29 witnesses testified but all could not tell who the land belongs to. Therefore admitting the evidence will take them back to the trial court for cross examination. That the issue was burial and not ownership of land. That the appellants have failed to meet the threshold under order 42 and the application should be struck out and the deceased body laid to rest. In the application dated 30th October 2015 it was submitted that Order 42 is clear on what comprises the record of appeal and the record the appellant seek to admit do not fall under the ambit of the said order. That the appellant have to show that they were produced before the lower court and were marked which they have not done. That they have misled the court that proceedings of HCCA 39/10 were produced in court. That what was marked as plaintiff exhibit 12 at page 788 was not proceedings of the said case but a witness statement of Johnstone Kassim. That the appellant have to satisfy the court that they have complied with Order 42 Rule 13. That if pages 93 to 108 are the sale agreement they can be admitted and the other pages expunged as requested.

DETERMINATION

12. Having considered the affidavits, the submissions and the cases cited, I find as follows: The applicant seeks to be allowed to adduce new evidence which they claim is crucial for the determination of the suit. They allege that the said evidence was not within their knowledge but was obtained from a government office after the lower court had rendered its decision on the matter. Section 78(1) (d) of the Civil Procedure Act provides that

“subject to such conditions and limitations as may be prescribed, an appellate court shall have power-

a. to determine 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”

Further Order 42 Rule 27 of the Civil procedure Rules provides that: “(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;

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,

c. 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 theappealis preferred the court shall record the reason for its admission.

13. From the above provisions, it is clear that the power to call additional evidence on appeal is a discretionary power which must be exercised sparingly and with great caution. It is important to note is that the same should not be used by a party who lost in the lower court to patch up his weak points and make a fresh case on appeal. The Court of Appeal in the case of James Mwangi Nganga V Kenyatta University Council and 4 Others held an applicant must demonstrate that such evidence could not have been obtained by reasonable diligence before and during the hearing and that it would have likely to have affected the result of the suit.

In the case of LADD V Marshall [1954] 1 WLR 489 page 491Lord Denning stated (and quoted with approval in the case of K. Tarmohammed V Lakhani [1958] EA 567 – that:

“ 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 been 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.”

The court further stated that:

“…….. except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence unless it was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available …….”

14. In allowing the said orders sought in the application the court has to weigh if the applicant has fulfilled the conditions as set out above. I have perused through the judgment dated 13th January 2016 in Civil Case no. 3773 of 2015. From the summary of facts and evidence as captured by the Learned Magistrate it is clear that the issue in contention in the said suit was on where to bury the late Timothy Mwandi Muumbo. The contention was between two parcel of land Thilani/Magwani/1498 or Mwingi/Nzeluni/318. From the reading of the same there was no mention of issue of the contention of ownership of the said parcel of land. What in my view the applicants are seeking to do is raise a new cause of action in an appeal. I find that the same does not fall within the ambit of Section 78(1) (d) and Order 42(2) (13) of the Civil Procedure Act. The application dated 14th June 2016 is dismissed with costs.

15. On the other hand the applicant’s application dated 31/10/16 seeking to lock out the additional documents seeking to bring in more evidence. The supplementary record of Appeal in terms of pages 15-21 pertain to a Civil Suit no. 39 of 2010 on issue of matrimonial property between the deceased and the late Phiatah Kithumbi Muumbo the same is a different cause and does not touch on the issue on where the deceased should be buried which forms the cause of action in the Civil case no. 3773 of 2015 which decision is being appealed in this civil appeal. As such I find that the same should not form part of the bundle and expunge the said documents which is also aimed at bringing in a new cause of action on appeal. The said document pages 15-21 be expunged from the said supplementary record of Appeal. In regards to the affidavit by Carolyne the appellant/applicants appear not to be opposed to the same as she alleges that the same could have been erroneously omitted while compiling the record of appeal as such the appellant to include the same in their record of appeal. Cost in the cause. It is so ordered.

Dated, signed and delivered this 18th day of July 2017.

R. E. OUGO

JUDGE

In the presence of;

1st, 2nd and 3rd Appellants/Applicants Absent

Miss Githongori For the 1st and 2nd Respondents.

MS. Charity Court Clerk