[2018] KEHC 5113 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 75 OF 2017

CORAM: D.S. MAJANJA J.

BETWEEN

REUBEN MONG’ARE KABA........................................APPELLANT

AND

M M N minor suing through her mother

and next friendR M................................................1ST RESPONDENT

VICTORINAH KEMUNTO MAKORI..............2ND RESPONDENT

(Being an appeal arising from the Judgment and Decree of Hon. E.A Obina SRM dated 17th November 2017 at the Chief Magistrate’s Court in Kisii CMCC No. 57 of 2015)

RULING

1. This ruling concerns an appeal from the dismissal of the appellant’s application objecting to the attachment and sale of motor vehicle Registration Number KBP 707A, Mitsubishi Fuso (“the vehicle”). The application was made under Order 22 rule 51 of the Civil Procedure Rules.

2. The appellant, who was the objector, based his claim on the ground that he purchased the motor vehicle from the 2nd respondent, who was the judgment debtor. She had taken a loan through Equity Bank Mumias Branch to purchase the motor vehicle and then sold it to the appellant. The sale was evidenced by the two agreements dated 11th and 14th December 2015 respectively.

3. In response to the application, the 1st respondent, who was the decree holder/judgment creditor annexed a copy of records which showed that as at 6th October 2017, the motor vehicle was registered in the joint names of Equity Bank and the judgment debtor. The judgment debtor argued that under section 8 of the Traffic Act (Cap 403 of the Laws of Kenya) the vehicle belonged to the judgment debtor and not the objector.

4. The trial magistrate considered the material before him and concluded that the appellant had not made out a case and as a result, dismissed the objection, precipitating this appeal.

5. The matter before me is the Notice of Motion dated 11th July 2018 filed by the 1st respondent seeking to admit new documentary evidence in the appeal. The application is made primarily under Order 42 rule 27(1) of the Civil Procedure Rules. The evidence the 1st respondent seeks to admit is a second objection application filed by Equity Bank, after the objection proceedings leading to this appeal were dismissed.

6. The appellant opposes the application on the ground that it is an abuse of the court process and does not fall within the provisions of Order 42 rule 27 of the Civil Procedure Rules.

7. Order 42 rule 27 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

(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.

8. Under Order42 rule 27 (1)(b) aforesaid, leave to admit new evidence is not as a matter of course; an applicant must demonstrate substantial cause. In Mzee Wanje and 93 Others v A K Saikwa and Others [1982-88]1 KAR 462, the Court of Appeal observed that:

The principle upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning L. J., as he then was, in the case of Ladd v Marshall (1945) 1 WLR 1489 at page1491 and those principles are:

(a)It must be shown that the evidence could not have been obtained withreasonable diligence for use at the trial.

(b)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.

(c)The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, thoughit need not be incontrovertible.

9. Although the case I have quoted dealt with the Court of Appeal Rules for admission of additional evidence on appeal, the principles stated therein are apposite. In this case, it is the respondent who wishes to introduce new evidence of subsequent objection proceedings. I am alive to the fact that the appeal is essentially against a finding of the trial court on whether the appellant was the owner of the vehicle based on the evidence before the court. What the applicant seeks to admit as evidence is another objection application made by another party. I will be required to a make a finding on that application which may prejudice the rights of that party without giving it an opportunity to be heard on the matter. Further, any finding or comment on that application will prejudice the trial magistrate who will ultimately hear the application. I will say no more.

10. For the reasons I have stated, I dismiss the application dated 11th July 2018. The costs of the application shall be in the appeal.

DATED and DELIVERED at KISII this 26th day of July 2018.

D.S. MAJANJA

JUDGE

Mr Gichana instructed by Bosire Gichana and Company Advocates for the appellant.

Mr Gichana instructed by Ben K. Gichana and Company Advocates for the appellant.