[2016] KEHC 4769 (KLR)
The court found that although the appellant did not explain why the additional evidence was not produced at trial, the proceedings from Succession Cause No. 51 of 1996 are central to the determination of the appeal. The lower court's judgment was premised on the belief that the appellant had sold her share during...
Source-derived case information.
- Citation
- [2016] KEHC 4769 (KLR)
- Parties
- Appellant: Nancy Wangari Kinyua; Respondent: Rose Wambui; Respondent: Catherine Njeri
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 48 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Adduce Additional Evidence on Appeal
- Outcome
- Application allowed; appellant granted leave to adduce additional evidence; costs to respondents.
- Judges
- BN Olao
- Legal Topics
- Additional Evidence on Appeal, Succession Proceedings, Land Subdivision Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wangari Kinyua
Appellant
Rose Wambui
Respondent
Catherine Njeri
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Adduce Additional Evidence on Appeal
Legal Issues
- 1 Whether the appellant should be allowed to adduce additional evidence in the form of proceedings from Succession Cause No. 51 of 1996 at the appellate stage.
- 2 Whether there is substantial cause to admit such evidence under Order 42 Rule 27(1)(b) of the Civil Procedure Rules.
Ratio Decidendi
The court found that although the appellant did not explain why the additional evidence was not produced at trial, the proceedings from Succession Cause No. 51 of 1996 are central to the determination of the appeal. The lower court's judgment was premised on the belief that the appellant had sold her share during the succession proceedings, a fact the appellant disputes. The court held that this constitutes substantial cause under Order 42 Rule 27(1)(b), justifying the admission of the additional evidence to ensure a fair determination of the appeal. The application was therefore allowed, with costs awarded to the respondents.
Court Disposition
Application allowed; appellant granted leave to adduce additional evidence; costs to respondents.
Orders
- The appellant is granted leave to produce additional evidence in the form of proceedings from High Court Succession Cause No. 51 of 1996.
- The appellant shall pay the respondents' costs of the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC APPEAL NO. 48 OF 2014
NANCY WANGARI KINYUA………..…...………………….APPELLANT
VERSUS
ROSE WAMBUI ……………………….………………1ST RESPONDENT
CATHERINE NJERI………………..…….…………….2ND RESPONDENT
(BEING AN APPEAL FROM THE JUDGMENT DELIVERED ON 19TH JANUARY, 2012 BY HON. H.N. NDUNG’U – S.P.M AT KERUGOYA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE NO. 267 OF 2010)
RULING
Order 42 Rule 27(1) and (2) of the Civil Procedure Rules provides as follows:-
27(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 –
the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted;
the Court to which the appeal is preferred requires any document to be produced or any witnesses to be examined to enable it 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 reasons for its admission”
Citing the above provision, the appellant has moved this Court by her Notice of Motion dated 2nd May 2013 and filed herein on 8th May 2013 seeking the following orders:-
That this Honourable Court be pleased to allow the appellant to produce additional evidence in this appeal to wit the proceedings in High Court Succession Cause No. 51 of 1996 in the matter of the Estate of DISHON CHUMA (deceased).
That costs of this application be provided for.
The application is premised on the grounds set out therein and also supported by the affidavit of the applicant NANCY WANGARI KINYUA. The main reason for seeking the order is that during the trial in the subordinate Court, the appellant had prayed for an order that land parcel No. MWERUA/GITAKU/827 be sub-divided into three portions between her and the respondents. The lower Court dismissed her orders for the reasons that she had sold her share of the original land parcel No. MWERUA/GITAKU/203 during the Succession Cause No. 51 of 1996 which was not true. It was on that basis that her claim was dismissed in the lower Court hence this application.
The respondents filed what they called a “protest” to the said application and which this Court, by virtue of the fact that the respondents are acting in person and also in the spirit of Article 159(2) (d) of the Constitution, treated as a reply to the said application. In the said “protest” the respondents averred that the appellant sold her one acre piece of land to one JOSEPH GITHINJI JOEL and is therefore not entitled to a share of the land subject to this appeal and all she wants is to take advantage of the 1st respondent’s illness to swindle her of her share. The respondents also allege that the appellant colluded with the local Assistant Chief to institute the Succession Cause without their knowledge.
I have considered the application and the respondents’ protest.
Order 42 Rule 27(1) (b) of the Civil Procedure Rules allows the Court to which an appeal has been preferred, and “for any other substantial cause” to admit additional evidence. The applicant has not indicated why this additional evidence was not availed during the trial in the subordinate Court. At least it has not been suggested that the trial magistrate refused to admit such evidence which is in the nature of the proceedings in Succession Cause No. 51 of 1996. It is clear however from the application that those proceedings are important for the determination of this appeal because the judgment in the lower Court was based on the claim that the appellant was not entitled to a share in land parcel No. MWERUA/GITAKU/827 having already sold her share during the succession proceedings in Succession Cause No. 51 of 1996. In my view, that is substantial cause enough to warrant the grant of the orders sought because the proceedings in that succession cause will play a pivotal role in this appeal.
Ultimately therefore, I grant the orders sought by the appellant in her Notice of Motion dated 2nd May 2013 and filed herein on 8th May 2013. The appellant will however meet the respondents’ costs of the same.
It is so ordered.
B.N. OLAO
JUDGE
12TH MAY, 2015
Ruling dated, delivered and signed in open Court this 12th day of May, 2016
Ms Wangechi for the Appellant present
Respondents both present.
B.N. OLAO
JUDGE
12TH MAY, 2016