[2023] KEHC 26146 (KLR)

Sitienei & 4 others v County Executive Environment Water Energy and Natural Resources & another (Civil Appeal E022 of 2020) [2023] KEHC 26146 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26146 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E022 of 2020

JRA Wananda, J

December 1, 2023

Between

Emmanuel Sitienei

1st Appellant

Sarah Ndinda

2nd Appellant

James Koros

3rd Appellant

Philip Kemboi

4th Appellant

Horse Wheel Self Help Group

5th Appellant

and

The County Executive Environment Water Energy and Natural Resources

1st Respondent

The County Government of Uasin Gishu

2nd Respondent

Ruling

1. This matter arises from a Judgment of the Magistrate’s Court in which the Appellants’ suit was dismissed. The Appellants had challenged the termination of a tender that had been awarded to the Appellants, under a Public-Private Partnership arrangement, to operate and manage a Public Toilet within the County.

2. The Application before Court is the Notice of Motion dated 21/07/2022 filed by the Appellant. The same seeks the following orders:a)[………..] Spentb)The Honourable Court do find the Appeal fit to call for further evidence relating to the Assets/Liabilities of the Public Private Partnership as the Respondent forcefully confiscated the Assets and handed them over to a third party as a going concern.c)The Honourable Court do make a finding that there is need to take further evidence as to the status of the Public Private Partnership before ordering dissolution.d)That costs of this Application abide by the outcome of the Appeal

3. The Application is filed through Messrs Angu Kitigin & Co. Advocates and is stated to be brought under Articles 50 & 159(2) (d) of the Constitution of Kenya, Section 1, 1A, 3 and 3A of the Civil Procedure Act, Order 8 Rules 3, 4 and 5, Order 51 of the Civil Procedure Rules 2010 and “all the other enabling provisions of the law of Kenya”. The grounds of the Application are as set out on the face thereof and it is supported by the Affidavit sworn by the 1st Appellant, Emmanuel Sitienei.

4. In the Affidavit, the 1st Appellant deponed that on 4/04/2022 he received a call from the County Revenue Office requesting him to visit the offices for purposes of clarifying issues relating to an account in respect to Tagore Public Toilet whose management had been awarded to the 4th Defendant Self-Help Group way back in 2005, upon arrival at the Offices he introduced himself and requested to be supplied with the statement relating to the said Public Toilet statement to familiarize himself with the issues raised by the Revenue Officers over an accrued account, he obtained the Statement which confirmed that the Partnership Account with the 1st and 2nd Respondents is still running to date and has an accrued monthly rent of Kshs 1,720,000/-.

5. He deponed further that he presented the house statement to his Counsel for purposes of perusal and advice, and who informed him that no tenant ever took over the account nor settled the account from 2015 when the 1st Appellant was ejected from the Public Toilet, the House statement obtained from the County Revenue Office ought to be added as evidence to help the Court adjudicate all issues in this Appeal, addition of the fresh evidence will enable the Court fully and finally adjudicate all issues, and that the Respondents will not suffer any prejudice as a result of inclusion of the House Statement.

Response 6. The Respondents opposed the Application vide the Grounds of Opposition filed on 9/02/2023 through Messrs GA Advocates LLP. The grounds advanced are that the Appellants have not met the threshold for adducing additional evidence on appeal under Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, the Application is incurably defective as it is couched in a tenor unpalatable to the rules of introduction of new or additional evidence on Appeal, the provisions upon which the Application is founded are on amendments of pleadings, an issue not before this Court, the Application is a departure from the objective of serving substantive justice and is an attempt to make a fresh case in appeal by sealing loopholes in the Appellant’s case, the additional evidence sought to be introduced could reasonably have been available to the Appellant for use at the trial, reasonable diligence would have made it so available, and that if the order is granted, it will hinder the swift conduct of litigation and prejudice the Respondent.

Hearing of the Application 7. Pursuant to directions given, the Application was canvassed by way of written submissions. The Appellants filed their Submissions on 13/07/2023 while the Respondents filed theirs on 20/02/2023.

Appellants’ Submissions 8. Counsel for the Appellant submitted that the failure by the Respondents to lawfully wind up by taking accounts of the Partnership exposes the Appellants to future threats of future litigation, it behoves the Court to invoke the provisions of the Partnership and the Public Private Partnership Actand order that the Partnership be wound up, accounts taken and a determination made as to who is to bear the liabilities and assets of the Partnership, the Respondents unilaterally leased the premises to a third party, the Public Private Partnerships Act gives policy guidelines, structure of negotiations and administrative structure that such Partnership should assume, the decision by the Respondents to unilaterally and forcefully eject the Appellant from the premises is illegal and negates the principal behind the Act, the Partnership is still subsisting, the assets and liabilities are yet to be determined under voluntary liquidation or Court mandated liquidation pursuant to Section 24 of the Act, the Respondents are still running a rent account in the name of the Appellants whereas they leased the premises to a third party, the accruals has not been stopped for the last 7 years, it is necessary that the Court allows the Application so as to collect the assets/liabilities, once done the Appellant will be allowed to tender further evidence as to the assets/liabilities, this Appeal seeks to reverse the lower Court’s decision and allow dissolution and liquidation of the Partnership, and that the Supreme Court of Canada ruled that a party to a partnership cannot appropriate the assets of the Partnership to himself or others without the authority of the partnership.

9. He added that the Court’s power to admit additional evidence is not restricted or impeded and the jurisdiction is derived from Section 78 of the Civil Procedure Act and Order 42 Rule 27. He referred to the case of Civil Appeal (Application) 84/2012, Attorney General vs Torino Enterprises Limited[2019] eKLR and cited guidelines set out in that case. Counsel then added that the Appellants have exhibited House Statement for TPT Tagore Public Toilet indicating the Current Tenant as Hose Wheel Self Help Group being the new evidence which he wishes to introduce on appeal, in the trial Court the Appellants did not produce the statement since the Respondent could not provide the same to them, the statement will enable the Court to adjudicate all issues, the decision whether to admit additional evidence on appeal is an exercise of judicial discretion, like all other discretions, the same be exercised judiciously and not capriciously, the only caveat is that in admitting further evidence, the Court must record the reason for allowing such admission. He cited the case ofTarmohamed & Another v Lakhani & Company [1958] EA 567 and also Wanjie & Othes v Saikwa & Others [1984] KLR 275.

10. Counsel contended further that the evidence sought to be adduced was not available during the trial before the lower Court. He conceded that the provisions should not be used to make out a fresh case or to improve a case and that the power should be exercised sparingly and caution should be exercised in admitting fresh evidence. He cited the Supreme Court case of Raila Odinga and 5 Others versus IEBC and 3 Others [2013]eKLR and also the cases of John Kiplangat Barbaret and 8 Others versus Isaiah Kiplagat Arap Cheloget [2016] eKLR and Mohamed Abdi Mohamed vs Ahmed Abdullahi Mohamed and 3 Others [2018]eKLR.

11. In conclusion, Counsel submitted that whether the additional evidence will impact the result of the case is a matter to be determined on merit upon evaluation of the additional evidence with all other evidence on record, the main contestation in the trial Court is whether the Appellants have a Public Private Partnership which is still subsisting and therefore whether the Respondents are still running a rent account (accruals) in the name of the Appellants, it is clear that the Appellants did not have the capacity to obtain the House Statements and adduce the same before the trial Court, it is the Respondents who were in control of the documents and could not allow the Appellants access the same, and that the Appellants are likely to suffer great loss if the evidence is locked out.

Respondents’ Submissions 12. On his part, Counsel for the Respondents reiterated the matters set out in the Grounds of Opposition and cited the Supreme Court case of Mohamed Abdi Mahamud (supra) on the parameters for admission of fresh evidence on appeal. He recounted the explanation given by the Appellants in their Supporting Affidavit on the manner in which they obtained the Statement upon request and termed it as proof of how easy and simple obtaining the same was. Counsel submitted that the Appellants ought to have done the same earlier, at the time of filing of the suit, the Appellants’ Affidavit does not indicate that they sought for the information earlier and that the same was not availed to them, the Appellants bear the burden of demonstrating that the additional evidence could not have been obtained with reasonable diligence, the Appellants have also not demonstrated that the trial Court refused to admit the evidence sought to be adduced. He cited the cases ofIsaac Gichunge Leakey v Njogu Titus Gichuru [2020] eKLR andGeoffrey Muriungi & Another v John Rukungam’ Imonyo [2017] eKLR and submitted that the Appellants intend to have a second bite of the cherry by patching up the loopholes in their case as this evidence was available at the time of the trial, the evidence sought to be adduced is not crucial and has no influence on the pending Appeal, and that the Appellants have not demonstrated how important would be to have this evidence admitted in these proceedings.

Analysis and Determination 13. Upon carefully considering the record including the Affidavits, and Submissions and authorities presented, in my view, the broad issue that arises for determination is the following:“Whether the Appellant has made out a case warranting it to be granted leave to adduce additional evidence at this appellate stage.”

14. First, I agree with the Respondents’ Counsel’s observation that, apart general provisions of the Constitution and general provisions of the Civil Procedure relating to the inherent powers of the Court, the Application is expressed to be grounded on Order 8 Rules 3, 4 and 5 and Order 51 of the Civil Procedure Rules, none of which has any relevance to the issue of adducing additional evidence at appellate stage. Be that as it may, in the interest of justice, I will excuse the Appellants and determine this matter on its merits.

15. The mandate of an appellate Court to admit additional evidence is one of the powers granted to an appellate Court under Section 78 of the Civil Procedure Act which provides that:“(1)Subject to such condition 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.

16. Order 42 Rule 27 of the Civil Procedure Rules then 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.”

17. The Supreme Court in the case of Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others [2018] eKLR, laid down guidelines for admission of additional evidence by appellate Courts as follows:“[79]Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate Courts in Kenya as follows:(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 not 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 a 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)where the additional evidence discloses a strong prima facie case of wilful deception of the Court;(i)The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.(j)A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.(k)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.”

18. Earlier, in the case of Raila Odinga and 5 others v Independent Electoral and Boundaries Commission & 3 others[2013] eKLR, the Supreme Court guided that it will be reluctant to admit additional evidence if the same will make it difficult or impossible for the opposing party to respond effectively. Evidently therefore, the Court must act with abundant caution and care in the exercise of its discretion under this rule.

19. Further, in Civil Appeal (Application) 84/2012 Attorney General vs Torino Enterprises Limited [2019] eKLR, the Court of Appeal stated as follows:“13. In Dorothy Nelima Wafula versus Hellen Nekesa Nielsen and Paul Fredrick Nelson [2017] eKLR, it was expressed that under that Under Rule 29(1) (a), additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason.” The Court further stated that:“Though what constitutes “Sufficient reason” is not explained in the rule, through Judicial practice, the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a Party seeking to present additional evidence on appeal. Before this Court can permit additional evidence Under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing, two, the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not incontrovertible.”

20. Although in the above case, the Court of Appeal was dealing with an Application brought under Rule 29 of the Court of Appeal Rules, there is no doubt that similar principles apply to the provisions under which the present Application is being considered.

21. In this instant case, by the Plaint filed on 5/01/2015 against the Respondents, the Appellants pleaded that the 1st - 4th Appellants are officials of the 5th Appellant, that the 2nd Respondents (through their predecessor, Eldoret Municipal Council) in May 2005 awarded to the Appellants, under a Public-Private Partnership arrangement, a contract for a term of not less than 15 years, to renovate, manage and operate an environmentally friendly public toilet referred to as “Tagore Public Toilets”. The Appellants pleaded further that in actualizing the contract, they spent substantial amounts of funds in developing and refurbishing the facility, that however by a notice dated 15/12/2014, the Respondents terminated the contract. The prayers sought by the Appellants were for a declaration that the notice was unconscionable, too short and in breach of the Constitution, a declaration that the public-private partnership was still subsisting and could only be dissolved by consent of both parties. In the alternative, the Appellants sought an award of damages for breach of contract and refund of the expended amount.

22. By the Judgment delivered on 30/10/2020, the suit was dismissed. The grounds for dismissal were basically that the contract did not have provision for refund, that the Appellants were expected to recoup their expenditure or investments from the profit received out of operating the toilet and that the contract had a clear termination clause which the Respondents lawfully invoked and applied.

23. Dissatisfied with the Judgment, the Appellants preferred this Appeal. The grounds of Appeal listed, quoted verbatim, are as follows:i)That the learned trial Magistrate erred in law in failing to make a finding that there is a Public Private Partnership.ii)That the learned trial Magistrate erred in failing that the Partnership has never been dissolved.iii)That the learned trial Magistrate erred in failing to make a finding that the Plaintiffs/Appellants had not recouped his investment from the Partnership.iv)That the learned trial Magistrate erred in law and fact in finding that the contract of lease had expired - when in fact the totality of the undertaking was more than a Lease.v)That the learned trial Magistrate failed to appreciate the nature, structure and import of a Public Private Partnership hence arriving at an erroneous judgment.vi)That the learned trial Magistrate erred in failing to realize that a Partnership is dissolved by taking of accounts and not by one party forcefully kicking out another.vii)That the judgment seeks to authorize deprivation of property without compensation contrary to Article 40 of the new Constitution of Kenya 2020. viii)That the judgment is a threat to Private Public Partnerships that are grounded upon major investment projects world over.ix)That the trial Court erred in failing to distinguish between a Public Private Partnership as contracted under the law and the periodic leases that derive from it.

24. My understanding of the Appellants’ case before the trial Court was basically that the manner and/or procedure of terminating the contract was flawed, unlawful and in breach of contract and that the termination should therefore be declared a nullity and as a result, the Appellants be allowed to continue to operate the public toilet. The alternative case was that if the termination were found to be valid, then the Appellants ought to be compensated.

25. The above cause of action is therefore what the Magistrate dismissed and is what at the hearing of this Appeal, the Appellant will be striving to convince this Court that the Magistrate erred about.

26. In the present Application, again quoted verbatim, the Appellant asks this Court to“find the Appeal fit to call for further evidence relating to the Assets/Liabilities of the Public Private Partnership as the Respondent forcefully confiscated the Assets and handed them over to a third party as a going concern” and secondly, that this Court “do make a finding that there is need to take further evidence as to the status of the Public Private Partnership before ordering dissolution”.

27. First, the prayers made are quite vague as they do not even disclose, on the face of it, the exact document sought to be adduced as additional evidence. Not even in the grounds of the Application is the specific evidence sought to be adduced identified. The language employed is too generalized. Even if allowed as prayed, the order that shall be come out of the said prayers as drafted, will obviously be uncertain and ambiguous.

28. One is forced to resort to the Supporting Affidavit to finally unravel and understand what specific document is sought to be adduced as additional evidence. Upon perusal of the Affidavit, it becomes clear that what is sought to be adduced is a running statement of Account for the Tagore Public Toilet contract, referred to as House Statement. Further scrutiny reveals that the reason given for the wish to adduce the statement as additional evidence is that the statement will demonstrate that the Public Private Partnership contract is still subsisting or running to date, has an accrued monthly rent, and that no tenant took it over as alleged by the Respondents before the Magistrate’s Court.

29. Comparing the above reasons given for the intention to adduce additional evidence to the matters arising for determination in this Appeal, I have struggled to understand how the said reasons will have any bearing on the matters for determination in this Appeal. I must confess that I am unbale to find any linkage at all. How will demonstrating that the account is still running affect the Magistrate’s Court’s finding that the contract was validly terminated? How does a simple failure to formally close the account have any effect on the finding that the termination of the contact was lawful? Is it not evident that closing the account subsequent to terminating the contract was only an administrative procedure? Even if the Respondents never put a new operator or tenant in possession of the toilet as reportedly intended, how does that affect the Magistrate’s finding that the contract was validly terminated?

30. In his Submissions, Counsel for the Appellant submitted that the failure by the Respondents to lawfully wind up the contract by taking accounts of the Partnership exposes the Appellants to future threats of future litigation, that it behoves the Court to invoke the provisions of thePartnership and the Public Private Partnership Act and order that the Partnership be wound up, accounts taken and a determination be made as to who is to bear the liabilities and assets of the Partnership, and that the Respondents unilaterally leased the premises to a third party. Again, I ask, how do these submissions relate to the prayer to adduce the statement as additional evidence?

31. It is clear to me that the said matters now raised are totally separate issues which bring out a totally different cause of action. This is against the rule that new evidence sought to be produced at appellate stage must not be such that it creates a new cause of action.

32. The Appellant’s Counsel argues that the contestation before the trial Court was whether the Public Private Partnership is still subsisting and therefore whether the Respondents are still running a rent account (accruals) in the name of the Appellants. With due respect, this is nowhere near the issues that were for determination before the trial Court. The issue before the trial Court was simply whether termination of the contract was lawful, not whether the contract was still subsisting. Whether the contract was subsisting was a secondary issue which was wholly dependent on the primary issue of whether the contract was validly determined. If this Appeal eventually succeeds, it will succeed on other grounds, but not on the ground that the account was never formally administratively closed.

33. In analysing the powers of an appellate Court to admit additional evidence, in the case of Wanjie & Others v Saikwa & Others [1984] KLR 275, Chesoni JA observed as follows:“This rule is not intended to enable a party who has 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 omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filing in gaps in evidence. The appellate court must find it needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given should be exercised very sparingly and great caution should be exercised in admitting fresh evidence”

34. I therefore reiterate, as was held in the Supreme Court case of Mohamed Abdi Mahamud (supra), that an appellate Court will only allow additional evidence“sparingly with abundant caution.”

35. Having carefully considered the matter therefore, I find that the additional evidence sought to be produced is not directly relevant to the matters before the Court, even if allowed, it will not influence or impact upon the result of the verdict, and it is not such that it will remove any vagueness or doubt over the case. The evidence therefore has no direct bearing on the main issue in the Appeal. I am therefore satisfied that the additional evidence sought to be produced does not meet the threshold set for Applications of this nature.

Final Orders 36. The upshot of my findings above is that the Application fails. Consequently, I rule as follows:i)The Appellants’ Notice of Motion dated 21/07/2022 is hereby dismissed with costs to the Respondents.ii)The parties shall now take expeditious steps to prosecute this Appeal.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF DECEMBER 2023. ....................WANANDA J.R. ANUROJUDGE