[2022] KEHC 13841 (KLR)

The Institution Of Engineers Of Kenya v M’Mayi (Constitutional Petition 135 of 2018) [2022] KEHC 13841 (KLR) (Constitutional and Human Rights) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13841 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 135 of 2018

HI Ong'udi & M Thande, JJ

October 13, 2022

Between

The Institution Of Engineers Of Kenya

Applicant

and

Howard Ashihundu M’Mayi

Respondent

Ruling

1. By way of a Notice of Motion dated May 24, 2022 and filed under Articles 48, 50 (1) and 159 (2), 165 (3) (b), 159 (2) and 259 (1) of theConstitution of Kenya 2010, Sections 146(4), 153, 154 and 173 of the Evidence Act Cap 80 Laws of Kenya, Rules 3, 19 and 26 of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and all other enabling provisions of the Law, the respondent seeks the following orders:i.The Honourable Court be pleased to admit the documents annexed herein as exhibits by the respondent:a.A letter dated October 12, 2016 authored by the petitioner and addressed to the Registrar, Engineers Board of Kenya, titled 'Re: Application for the Position of Deputy Registrar - Compliance, Standards and Enforcement- EBK G7';b.A form titled 'Form of Application for Membership or Transfer of Class of Membership No G 3249: The Institution of Engineers of Kenya' dated May 5, 2017 and signed by the petitioner, by which he applied to be admitted into the respondent in the Class of Corporate Member (and was proposed by Eng Kevin Obwocha Nyabuto and Eng David Amukhuma Muchilwa, and recommended by Eng Samuel Okech Omer and Eng. Denis Aringo Odek);c.A letter authored by Eng Charles K Kabubu, Director, Sustainable Materials Research and Technology Centre (SMARTEC) dated June 22, 2017 and addressed to the Registrar, Human Resource and Administration Manager, Engineers Board of Kenya, titled 'Re: Recommendation for Eng Howard M'Mayi'; andd.Certificate of Membership issued by the respondent on July 13, 2017, certifying that the petitioner was elected Corporate Member M 3249 of the respondent on July 6, 2017. e.A letter dated February 1, 2022 authored by the petitioner and addressed to the Director General, Kenya National Highways Authority (KENHA), titled 'RE: Show Cause 1110435: Comprehensive Response' and forwarding email dated February 10, 2022. f.A letter dated May 31, 2022 and forwarding email of the same date authored by the respondent's Advocate and addressed to the petitioner's Advocate, titled, 'Howard Ashihundu M'mayi -versus-the Institution Of Engineers Of Kenya High Court Constitutional Petition No 135 OF 2018'.g.A letter dated March 16, 2022 authored by the respondent's former President and addressed to Director General, Kenya National Highways Authority (KENHA).ii.Following the admission of the documents described in paragraph (i), the petitioner be recalled for further cross-examination and re-examination respectively.iii.Costs of this application to abide the outcome of the petition.

The respondent/applicant’s case 2. The application was supported by the respondent’s President, Engineer Nathaniel Wilson Omwolo Matalanga’s affidavit sworn on May 22, 2022 and grounds on the face of the application.

3. He averred that in support of their case against the petitioner, they had adduced the following documents as part of the documents they would rely on:i.A letter dated October 12, 2016 authored by the petitioner and addressed to the Registrar, Engineers Board of Kenya, titled 'Re: Application for the Position of Deputy Registrar- Compliance, Standards and Enforcement- EBK G7'(Annexed and marked as ‘NWOM1’);ii.A form titled 'Form of Application for Membership or Transfer of Class of Membership No G 3249: The Institution of Engineers of Kenya' dated May 5, 2017 and signed by the petitioner, where he applied to be admitted into the respondent in the Class of Corporate Member as proposed by Eng Kevin Obwocha Nyabuto and Eng David Amukhuma Muchilwa, and recommended by Eng. Samuel Okech Omer and Eng Denis Aringo Odek)( Annexed and marked ‘NWOM2’);iii.A letter authored by Eng Charles K Kabubu, Director, Sustainable Materials Research and Technology Centre (SMARTEC) dated June 22, 2017 and addressed to the Registrar, Human Resource and Administration Manager, Engineers Board of Kenya, titled 'Re: Recommendation for Eng Howard M'Mayi' (Annexed and marked ‘NWOM’); andiv.Certificate of Membership issued by the respondent on July 13, 2017, certifying that the petitioner was elected Corporate Member M 3249 of the respondent on July 6, 2017(Annexed and marked ‘NWOM4’).

4. He deponed that when the petition came up for further hearing on May 17, 2021, the respondent’s advocate had not been able to trace the above cited documents which were relevant in the cross examination of the petitioner. This is since the documents related to the question as to whether the petitioner had misrepresented his qualifications to the Engineers Board of Kenya when he applied for a job in 2016. In light of this, it was noted that although the respondent’s advocate conducted the cross examination, he was not able at that time to confront the petitioner with the actual documents in proof of the misrepresentation.

5. He further deponed that their Counsel later on informed them that the documents in question had been inadvertently misfiled in another file (Miscellaneous Application No 134 of 2020 Howard Ashihundu versus The Institution of Engineers of Kenya and another) which matter has been recently concluded.

6. In light of this information the respondent’s advocate contacted the petitioner’s advocate on May 19, 2021 via a telephone call to inform him of the unavailability of the documents in question. Counsel additionally cautioned the petitioner’s counsel on the petitioner’s risk of being subjected to disciplinary proceedings and perjury on the basis of the testimony orated in Court on May 17, 2021. This conversation was further recapped in the respondent’s advocate’s letter to the petitioner’s counsel on May 19, 2021.

7. He deponed that the additional documents sought to be produced were directly relevant to the issues in dispute in the petition owing to the facts of their case.

8. In addition, he averred that on February 10, 2022, the respondent became aware of a letter drafted by the petitioner dated 1st February 2022. This was in response to a show cause letter he received from his employer Kenya National Highways Authority (KENHA) which was predicated on the petitioner's alleged contravention of the law and KENHA's Human Resource Policy by having held two positions of employment at KENHA and Jomo Kenyatta University of Agriculture and Technology (JKUAT)) concurrently.

9. In view of this, he deponed that the petitioner in the letter had misrepresented the facts of the instant petition including disparaging comments about the Honourable Justice Weldon Korir who was handling the matter at the time.

10. He averred that although the letter dated February 1, 2022 did not exist at the time of cross-examining the petitioner on April 17, 2021, it directly related to the instant petition and in particular, the allegations made by the petitioner in the petition. For this reason he contended that it was in the interests of fairness and justice that the request be allowed.

11. Similarly he deponed that recalling of the petitioner for further cross-examination and re-examination would grant the petitioner an opportunity to rebut the documents sought to be admitted by the respondent and avail the Court an opportunity to make an informed decision on the issues in contention. Nevertheless he noted that the petitioner would not suffer any prejudice if the orders herein were granted. In his further affidavit dated May 13, 2022 the deponent reiterated the contents of his initial affidavit which I shall not rehash here. He averred that in this way the petitioner had drawn their attention to the fact that he had been asked by KENHA to respond to a show cause letter.

12. In light of this he contended that the petitioner in his letter to KENHA had made serious allegations against the respondent without tendering any evidence to prove the allegations. As such it was imperative to recall the petitioner to provide further testimony.

13. Furthermore he averred that the Engineers Board of Kenya in a letter dated March 6, 2018 made it clear that it had reviewed its records for all applicants and confirmed that it had issues regarding the professional conduct of the petitioner and another Engineer, (Marked as ‘NWOM9’). He urged the Court to allow the respondent to produce the documents marked ‘NWOM1-NWOM9’ so that the petitioner could be re-called for further cross-examination and re-examination on the said documents.

The petitioner/respondent’s case 14. The petitioner in opposing the application filed its grounds of opposition dated June 2, 2022 which are summarized as follows:i.The application’s request is an attempt at abusing the process of the court by obstructing the Court from dealing with the real issues in controversy raised in the amended petition by introducing a red herring in order to cloud issues and secondly frustrate the fair, efficient and just disposal of the petition herein.ii.The documents sought to be admitted in the application are the product of forgeries and illegally obtained evidence and hence inadmissible under the Law. As such the documents cannot be used to re-open the matter and seek to invent a new cause of action.iii.The respondent's application consists of documents that bear no relevance to the issues raised in the amended petition or the testimony of the petitioner to wit, whether there was inter alia violation of the rights of the petitioner to contest the presidential elections of the respondent held in 2018, whether the petitioner was accorded fair administrative action and whether the respondent adhered to its own by-laws in settling disputes through Alternative Dispute Resolution prior unilaterally barring the Petitioner from contesting the elections.iv.The respondent's application is premised on third party documents of parties not in the suit whose source is questionable and illegally obtained in order to allow the respondent to conduct the proceedings through piece meal and trial by ambush.v.The respondent's application threatens to render the proceedings indeterminate and uncertain, against the principle that constitutional petitions should be expeditiously determined without undue regard to technicalities.vi.The respondent's application would make it extremely difficult for the petitioner to know with reasonable certainty and clarity what issues the petitioner will face nearing in mind that the documents sought to form the basis of cross examination have not been vouched being that they emanated from third party institutions and neither has a basis been established to show that the documents are relevant to the proceedings.vii.The application is baseless, without merit and otherwise an abuse of the Court’s process and should therefore be dismissed.

15. The petitioner further filed a replying affidavit sworn on June 2, 2022 where he deponed that at no point in the proceedings was there any mention of missing or misplaced documents. That the allegations were untrue and irrelevant to the issues before this Court. In view of the fact that the respondent had already closed its case, he averred that the respondent was now on a fishing expedition. In reference to the respondent’s advocate’s call and email dated May 19, 2021 to his advocate he deponed that the same had been couched as a threat and blackmail for him to withdraw the petition.

16. He averred that the substance of the petition relates to the decision by the respondent to block him from contesting the office of the president of IEK. The issue is whether this infringed on his rights to freedom of association and fair administrative action. The respondent’s documents seek to introduce a new cause of action while expanding the case to include persons who are not parties to these proceedings. Similarly he notes that the documents marked as NWOM 1, NWOM 2 & NWOM 3 are illegally obtained evidence making them inadmissible in this Court.

17. He further deponed that although the Court has discretion to admit additional evidence, the same has to be judiciously exercised on firm and sound principles of law. As well, the same should not form an avenue to assist a party tainted with illegality or be used as a weapon for ambush. He further deponed that admission of the cited documents would gravely prejudice him. The reason being that he would not get a chance to rebut the said evidence as the makers of the documents are not parties to these proceedings and their inclusion will significantly obscure the nature of the instant case. The application he depones has been made in bad faith.

The respondent/applicant’s submissions 18. The applicant through his advocates Nderitu & Partners Advocates filed written submissions dated June 13, 2022 who identified the issues for determination as:i.Whether the additional evidence should be allowed and the petitioner recalled for further cross-examination and re-examination; andii.Who is to bear the costs of the application.

19. To begin with Counsel submitted that Section 146 (4) of the Evidence Act grants the Court power to recall a witness for further cross-examination and re-examination. Similarly that Rule 20 (4) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 also grants the Court power to recall any witness if the evidence given is likely to assist the Court to arrive at a just decision.

20. Counsel relied on Raindrops Limited v County Government of Kilifi [2020] eKLR; Joseph Ndungu Kamau v John Njihia [2017] eKLR; Eunice Jacqueline Chebukwa Wanjala v Kenya Commercial Bank Ltd & another [2021] eKLR, among others to support this argument. The said cases had listed the following as factors for consideration, in an issue of this nature:i.That the jurisdiction is a discretionary one and is to be exercised judiciously;ii.That the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party;iii.That the proposed re-opening is not intended to fill gaps in the applicant’s evidence;iv.That there is no inordinate and unexplained delay;v.That the evidence sought to be introduced could not have been obtained with reasonable diligence at the time of hearing of the applicant’s case;vi.That the evidence is such that, if admitted, it would probably have an important influence on the result of the case, though it need not be decisive; andvii.That the evidence must be apparently credible, though it need not be incontrovertible.

21. Counsel submitted that allowing the production of the additional documents would not prejudice nor embarrass the petitioner’s case as the respondent had already laid a basis for the documents marked NWOM1-NWOM4 during cross-examination of the petitioner on May 17, 2021. He added that the petitioner in his response had not stated how the production of the additional documents and re-opening of the petition would prejudice, embarrass or delay his case.

22. Additionally, Counsel submitted that the respondent’s advocate’s inadvertent failure to produce the documents (misfiled documents marked NWOM1-NWOM4 in Misc Application No 134 of 2020 Howard Ashihundu v Institution of Engineers of Kenya and another) during the hearing was a genuine mistake on the advocate’s part. He urged the Court to overlook this matter in the interests of justice as the documents marked NWOM 5-NWOM 8 were drawn subsequent to the hearing dated May 17, 2021 and could not be produced before even with reasonable diligence. In support of this call Counsel relied on the case of Odoyo Osodo v Rael Obara Ojuok & 4 others [2017] eKLR where it was held that when it is a genuine mistake or error on the part of the lawyer the Court may overlook it in the interest of justice.

23. Counsel in view of this informed the Court that the documents marked NWOM1-NWOM8 had not been available at the time of cross-examination of the petitioner but were now available. He argued that the documents were credible and relevant to the outcome of the petition. Further, that there had been no undue delay by the respondent in filing the application.

24. On the second issue Counsel pleaded with the Court to exercise its discretion under Rule 26 of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 by ordering that costs of this application abide the outcome of the petition and further not to condemn the respondent to pay the costs.

The petitioner/respondent’s submissions 25. The petitioner through the firm of Onyango & Ameyo Advocates filed written submissions and a list of authorities dated June 22, 2022. Counsel identified the issues for determination as:i.Whether the respondent had satisfied the requirements for re-opening of the case to recall the petitioner for further cross-examination and be allowed to produce further documents; andii.Which party should bear the costs of the application.

26. On the first issue, Counsel submitted that the pronouncements on the principles for recall of a witness are discretionary in nature and should be exercised judiciously. He reiterated what counsel for the respondent/applicant had outlined as points of observation before an order for recall of the petitioner and admission of the documents is made. To support this submission he cited Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & others (2018) eKLR and Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another (2015) eKLR.

27. While submitting on these considerations counsel stated on the first principle that the documents sought to be produced were prejudicial because the petition pertains to whether there was compliance with rules of natural justice and fair administrative action before reaching the impugned decision. For that reason the documents sought will not in any way demonstrate compliance as held in Daniel Mwenda Ntoiti v Institute of Engineers of Kenya & another [2020] eKLR. In addition, he submitted that the makers of the documents are not parties or witnesses in these proceedings and the documents are contested. Thirdly, that the petitioner would not have the opportunity to cross-examine the makers of the third party documents as they are not parties to the suit.

28. On the second principle counsel submitted that the documents sought to be produced were solely intended to close gaps in the respondent's case by adverting to irrelevant matters to explain the lack of due process prior to the impugned decision.

29. On the third principle, regarding time, counsel contended that the respondent had adjourned the instant matter no less than eight (8) occasions yet in all those occasions, the question of misplaced documents had never been brought up. He urged the Court to be guided by the issue of inordinate delay that cannot be explained contrary to Article 159 (2)(b) of theConstitution.

30. In support reliance was placed on the Supreme Court case ofRaila Odinga V Independent Electoral And Boundaries Commission & Others[2013]eKLRwhere it was noted that failure to comply with rules and indeed act timeously as per the legal requirements cannot be cured simply by invoking Article 159 of theConstitution. On the exercise of due diligence, counsel while making reference to annextures 'HAM 2(a)', 'HAM 2(b)', 'HAM 2(c)', 'HAM 2(d)' and 'HAM 2 (e)' annexed to the petitioner’s replying affidavit, submitted that the evidence was at all times in possession of the respondent but was deliberately withheld in order to be produced at specific intervals convenient to it.

31. On re-opening of the case, counsel submitted that the evidence sought to be adduced was not credible. Relying on the petitioners annextures marked as 'HAM 1 (a)' and ‘HAM, 1 (b)’ he noted that both were addressed to the EBK which failed to authenticate or confirm that the documents were issued by them. In view of the above he urged this Court to exercise its discretion in favour of the petitioner.

32. On the second issue, he submitted that the Court ought to award the costs to the respondent in view of the fact that it had not established any firm basis warranting the instant application.

Analysis and determination 33. I have carefully considered the application, affidavits, grounds, case law and the law and find the key issue for determination to be whether the instant application has met the requisite requirements for admission of additional evidence. I have considered all the augments in support of and against the application as set out in the preceding paragraphs.

34. The admission of additional evidence and recall of witnesses in a Court hearing a matter is well founded in our law and is discretionary on the part of the Court. In arguing their case, the parties relied on a plethora of cases that contain the now well settled principles on the determination of admission of additional evidence.

35. This Court is well guided and in agreement with the views in these authorities. In a nutshell, the governing principles for allowing additional evidence were set out by the Supreme Court in the case of Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamed & 3 others. These principles have been well captured by counsel for both parties in their submissions.

36. It is clear from the cited authorities that an application for admission of additional evidence does not permit a party to introduce a new cause of action or bring about incongruity as opposed to relevant additional evidence. This undoubtedly would be against the intention of the rule for admission of additional evidence. Moreover, there would be no end to litigation if the rule was to be used for the purpose of allowing parties to make out a fresh case by seeking additional evidence. It is for this reason that the Courts are cautioned to exercise that discretion carefully while adhering to the laid down principles.

37. This caution was echoed by the Court in the case of Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR where it was observed that:'When considering the additional evidence in my view a careful inquiry by the court ought to be made into the nature of the evidence as to its relevance, materiality facts in issue, admissibility and the strength of the evidence sought to be introduced within the trial.'

38. As a starting point, the respondent in its application seeks admission of documents that it asserts were not in its possession during the Court hearing held on May 17, 2021. He argued that the sought documents had been misfiled in Miscellaneous Application No 134 of 2020 Howard Ashihundu versus The Institution of Engineers of Kenya and another and they contain relevant information to the matter herein.

39. The respondent’s assertions were challenged by the petitioner who termed the application as a fishing expedition while challenging the authenticity of the documents. The petitioner’s counsel contended that the evidence sought to be adduced was available at the time of hearing and so the applicant’s explanation could not suffice. Additionally that introduction of the new documents sought, was injurious as the makers were third parties not part of the suit. In view of this it was contended that the application did not meet the threshold for admittance of additional evidence as set out in the governing principles.

40. The main issue for determination in the instant petition is the respondent’s decision to bar the petitioner from vying for an elective post (president post) in the respondent’s institution. Clearly, the evidence that is to be admitted in this case ought to revolve around a case for or against the respondent’s decision in line with the cited constitutional principles for such an exercise.

41. An examination of the materials before this Court reveals a number of things in my view. First, that the application is premised on the respondent’s assertion that the petitioner deliberately misrepresented his qualifications to the Engineers Board of Kenya (EBK). Secondly, the applicant states that the evidence existed at the time of the hearing, and that the same was not available as it had been misfiled. Thirdly, that the application seeks to introduce new documentary evidence where the authors of the documents are not party to this suit and that the documents were recently authored.

42. In my analysis, I find that the purpose of the sought additional evidence does not relate to the issues sought to be determined in the petition. I say so because while the petition is concerned with the correctness of the respondent’s adherence to the law and constitutional principles in carrying out its election process the instant application seeks to ascertain the eligibility of the petitioner based on his qualifications in essence introducing a new cause of action.

43. While the respondent argued that the sought evidence could not be obtained prior to making of this application, it fails to demonstrate its exercise of reasonable diligence and effort in acquiring the documents prior to making this application in the midst of the knowledge that the documents existed. Similarly, it is noted that the applicant seeks to introduce new evidence that was generated recently or rather during the pendency of this suit. I find this problematic because as a legal principle litigation must come to an end. Furthermore, it is not enough for the respondent to merely make an application to have the documents admitted in evidence without calling the makers of the documents who are not parties in this suit.

44. In my humble view the applicant could have easily in the same way sought to have the drafters of the documents availed in court as witnesses. The authenticity of the documents as challenged by the petitioner and the supposed misrepresentation of his qualifications to EBK although not the main cause of action in this matter can only be secured by attendance in Court of the drafters the documents.

45. Deriving support from the governing principles in assessing whether admitting the additional documentary evidence is prudent, I take the view that the respondent did not demonstrate or satisfy the set principles. It failed to demonstrate how the additional evidence would resolve the real controversy of the suit as presented in the petition.

46. This Court is alive to the fact that litigation must come to an end. I say so because the new additional evidence sought is premised on documents that were generated years after the instant suit was filed. It is my considered view that in the circumstances there would be a likelihood of prejudice or injustice to the petitioner if the same were admitted.

47. I find useful guidance in the observation by the Court in the case ofEO v COO [2020] eKLR where it was held that:'27. This Court is cognizant of the holding in Mzee Wanje and 93 Others Versus AK Saikwa (1982 – 88) 1 KAR 463 where the Court of Appeal, referring to Rule 29 of the Court of Appeal Rule Similar to Section 78 of Civil Procedure Act stated:This Rule is not intended to enable as 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.

28. That would be no end to litigation if the Rule were used for the purpose of allowing Parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence. In Raila Odinga and 5 Others Versus IEBC and 3 Others [2013] eKLR, the Supreme Court added its voice on reception of additional evidence in the context of Presidential election and Stated:'The other issue the Court must consider when exercising its discretion to allow a further affidavit, is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other Party is able to respond to it, than the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence is such as to make it difficult or impossible for the other Party to respond effectively the Court must act with abundant caution and care. In the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of addition evidence'

48. The record further shows that the petitioner had been taken through long cross examination on May 17, 2021. Bearing all this in mind plus my findings above, I have come to the conclusion that the instant application has not met the threshold for admission of additional evidence and recall of a witness for further cross examination. The upshot is that the application lacks merit and is dismissed with costs.Orders accordingly.

DATED AND SIGNED THIS 11THDAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13THDAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDEJUDGE OF THE HIGH COURT