[2015] KEHC 2316 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HIGH COURT CIVIL APPEAL NO.62 OF 2008

REGISTERED TRUSTEES OF BOCHASANWASI

SHREE AKSARPUSHOTTAM

(SWAMINARAYAN) SANSTHA....................................................................................PLAINITFF/APPLICANT

VERSUS

MUNICIPAL COUNCIL OF KISUMU.........................................................................DEFENDANT/RESPONDENT

R U L I N G

The Registered Trustees of Bochasanwasi Shree Aksarpushottam (Swaminarayan) Sanstha, hereinafter refered to as the Applicant, filed this notice of motion dated 25th March 2013 under Certificate of Urgency primarily seeking to be granted leave to lead additional evidence during the appeal. The applicant sets out four grounds which are as follows:

'' 1. The Appellant has after the judgment and during pendency of this appeal case obtained several documents which are critical to their appeal case.

2. That the additional evidence sought to be produced by the Appellant was kept away from it by the Respondent at trial shall enable this court have sufficient evidence on record to determine the case finally.

3. The application herein is meritorious and has been brought with out unreasonable delay.

4. It is in the interest of fairness and justice that this application be allowed.''

The application is supported by the affidavit of Bhanubhai Bavjibhai Patel sworn on 25th May 2012 in which he depones that he is the Chairman to the Appellant and that after the judgment of the trial court, they have come into possession of several documents from the Respondent which are critical to this case. Though the deponent indicated that the documents are marked “BRP1' and are annexed to the affidavit, the court has noted that not a single document is annexed to the said affidavit.

The Municipal Council of Kisumu, herein after refered to as the Respondent, opposed the application and filed the grounds of opposition dated 12th July 2013 setting out three grounds marked (i) to (iii). The Applicant then filed a supplementary affidavit sworn by Naresh Kumar Rambhai Patel on 20th August 2014. The deponent stated that while filing the application, the documents they wanted to annex were forgotten and hence the supplementary affidavit in which the documents are marked “ NRP1 ” and annexed to the affidavit.

The Respondent then filed a replying affidavit sworn by Doris Ombara, acting Kisumu City Manager. The deponent states that the documents annexed to the supplementary affidavit are of dates before the hearing of the case and there is no explanation offered as to why they were not produced during the trial. The deponent further stated that the documents sought to be produced are unlikely to change the decision arrived at after the trial as the evidence of the Registrar from the Commissioner of Lands had confirmed that no transfer of the suit land to the late Fredrick Oyoo had occurred. The deponent stated that to allow the documents to be introduced as evidence at the appeal stage would be prejudicial to the Respondent.

When counsel for the parties appeared before the court on the 23rd June 2015, they agreed that the application be dealt with through written submissions. Both Counsel filled their respective submission dated 14th July 2015 and filed on 15th July 2015.

The issue for determination is whether the applicant has satisfied the conditions that are a prerequisite to admission of new evidence on appeal.

The Applicant Counsel has submitted that they have established sufficient grounds for calling of new evidence. The Counsel refered to the following decisions:

(a) Diana Kethi Kilonzo - V - Independent Electoral & Boundaries Commission& 2 others{2014} eKLR, where the court made reference to General Parts (U) ltd V Kunnal PraditKariaca No.266 of 2013and K.Tarmohamed & Another – v- Lakhani & Co. (1958) EA 567.

(b) Peninah Naudako Kiliswa -V- Independent Elections & Boundaries Commission & 2 others{2014} eKLR.

(c) Elizabeth Chepkoech Salat - V - Josephine Chesang Chepkwony Salat{2014} eKLR.

(d) John Wagura Ikiki & 3 others -V - Lee Gachunga Muthoga {2011} eKLR.

The Counsel for the Respondent submitted that the Applicant knew of the existence of the documents it seeks to be admitted from the time the matter was before the trial court but has not shown why they failed to produce it during the trial. The Counsel submitted that the Applicant was not diligent enough and that the application should not be allowed. The Counsel refered the court to the following decided cases.

(a) Penina Nandako Kiliswa – V – Independent Elections & Boundaries Commission & 2others {2014} eKLR.

(b) James Gitahi Mwangi – V – Simba Colt Motors ltd.

The court has considered the grounds on the application, supporting, supplementary and replying affidavits plus the submissions by counsel and come to the following conclusions:

(a) That the production of additional evidence in appellate court is guided by Order 42 Rule 27 of Civil Procedure Rules which states:

'' 27. (I) The parties to an appeal shall not be entitled to produce additional evidence,whether oral of documentary in the court to which the appeal is prepared, but if -

(a) the court from whose decree the appeal is refused has refused to admit evidence which ought to have been admitted; or

(b) the court to which the appeal is prefered requires any documents to be produced or any witness to be examined to enable it pronounce judgment, or for any other substantial cause,

the court to which the appeal is prefered may allow such evidence or documents to be produced, or witnesses to be examined.

Whenever additional evidence is allowed to be produced by the court to which the appeal is prefered the court shall record the reason for its admission.''

At this interlocutory stage, the court is aware it is not supposed to make any decision that should appear to determine the appeal which is pending hearing. The court has perused the trial court proceedings that is annexed to the record of appeal and have noted that the Appellant did not seek to produce the documents marked '' NRP – 1 '' that are annexed to the supplementary affidavit sworn on 20th August 2014 during the trial. The court has also noted that the trial court did not decline to allow any of the parties herein from producing any of the said documents as exhibits. The foregoing confirms that the documents the Appellant seeks to be allowed to produce do not fall under the category of the evidence provided for under Order 42 Rule 27 (1) (a) of the Civil Procedure Rules. Do the documents fall under the evidence provided for under Order 42 Rule 27 (1) (b) of Civil Procedure Rules? The documents sought to be admitted in evidence at this stage are the letter dated 6th June 2000 to the Commissioner of Land, Certificates of Lease in respect of Kisumu/Municipality/Block 8/322 and 323 issued on 27th March 2000, Lease for Kisumu Municipality/Block 8/322 which was Certified on 1st November 2002, document headed '' Position of titles on MCK Property as at 5th June 2002, '' and copy of part Development Plan. There is nothing to show that the six documents were obtained by the Appellant after the trial court's judgment. The proceedings before trial court took place between 24th June 2004 and 25th May 2008, when the judgment was delivered, and all through that period the documents the Appellant wishes to be allowed to produce were in existence. The Appellant has not disclosed how the production of the said six documents would change or would have

changed the decision of the honourable learned trial Magistrate of 25th May 2008. The Applicant was not diligent enough as though the appeal was filed in 2008, it is not until 2013 that the current application was filed.

For reasons set out above the court finds that the Appellant application dated 25th April 2013 has no merit and is dismissed with costs.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

7/10/2015

Dated and Delivered this …......... day of …........................................2015

In presence of

Plaintiff ..................................

Respondent ….................................

Counsel …....................................

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

7/10/2015

7/10/2015

SM. Kibunja J

Oyugi Court clerk

Navish Patel/Treasurer

Panil Patel/Chairman

Mr Sala for Asuma for Respondent

Mr Kowino for Yogo for Appellants

Court: Ruling delivered in open court in presence of the Treasurer and Chairman of the Appellant Society and Mr Kowino for Yogo for Appellants and Mr Sala for Asuna for Respondent

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

7/10/1015