1. What is before this court is a Notice of Motion application dated 8th February 2022 and filed on 9th February 2022. The said application seeks the following orders: -
a) Spent;
b) That this honourable court be and is hereby pleased to arrest the judgement due on notice pending the hearing and determination of this application interpartes;
c) That this honourable court be and is hereby pleased to allow additional evidence in appeal to wit Mombasa HCCA No.16 of 2020, Emmanuel Hatangimbambazi versus Claudine Susan Muvandimwe through a supplementary record of appeal as follows:-
i. True copy of the certified copy of the plaint and its verifying affidavit in Mombasa Children Case No.268 of 2006, dated and filed on 14th September 2002;
ii. True copy of the certified copy of the Certificate of Urgency in Mombasa Children Case No. 268 of 2006, dated and filed on 14th September 2006;
iii. True copy of the certified copy of the Chamber Summons Application and its Supporting Affidavit in Mombasa Children Case No. 268 of 2006, dated and filed on 14th September 2006;
iv. True copy of the certified copy of the Court Order in Mombasa Children Case No. 268 of 2006, dated 15th September 2006; and
v. True copy of the certified copy of the Notice of Withdrawal of Suit in Mombasa Children Case No. 268 of 2006, dated 15th September 2006.
d) That this honourable court as a matter of right ought to admit the additional evidence by means of an affidavit and the same be filed as a supplementary Record of Appeal.
e) That the costs of this application be provided for.
2. The application is premised on the grounds therein stated and the Supporting Affidavit of the Appellant/Applicant sworn on 8th February 2022. In the said affidavit he deposed that his marriage to the Respondent was dissolved vide judgement delivered on 4th September 2020 in Divorce Cause No. 48 of 2016. Being aggrieved by the said judgement he lodged this appeal and the judgment is due on notice. He averred that he discovered new and important matter or evidence which after the exercise of due diligence, could not be produced at the time when the suit was filed and the judgement delivered.
3. He stated that the new evidence and information shows that the Respondent had contracted a statutory marriage at the time she claims to have contracted marriage with him. That the newly discovered evidence would help the court reach a different decision thus the need to arrest the pending judgement.
4. He argued that under Order 42 rule 27 of the Civil Procedure Rules, 2010 this court has power to allow additional evidence or to order for the same to be taken on its behalf. He sought review of the court’s judgement made on 4th September 2020.
5. The application was opposed by the Respondent.
6. The application was canvassed through oral submissions.
7. When the matter came for hearing on 11th July 2023 Ms. Kemunto, learned counsel for the Appellant/Applicant submitted that the application is premised on Sections 1A and 3A of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules, 2010. Further that they were seeking the leave of the court to admit new evidence at the appeal stage in form of pleadings in Mombasa Children Case No. 268 of 2006 Claudine Genya Nyale versus Solomon Genya Nyale. She further submitted that the Appellant/Applicant obtained the new evidence in January 2022 and that at the time of the hearing the Applicant/Applicant was not aware of the said case.
8. The said learned Counsel urged that the evidence they seek to introduce shows that the Respondent did not have the capacity to marry the Appellant/Applicant as she was already married to Solomon Genya Nyale. She submitted that the evidence will affect the outcome of the appeal. Counsel relied on the case of Nayan Mansukhlal Salva versus Hanikssa Nayan Salva [2019] eKLR and submitted that her client could not have obtained the evidence as the Respondent used a different name in the said proceedings. She urged the court to allow the application.
9. Mr. Angima, the learned counsel for the Respondent submitted that they were relying on the replying affidavit sworn on 4th March 2022. He argued that admission of evidence on appeal is a remedy that that can only be granted in exceptional circumstances and even then, in the interest of justice. Counsel argued that if this court allows the application then it should send the matter back to the trial court for hearing and determination. It was however urged that there was no need to do so as no exceptional circumstances had been shown.
10. Counsel further submitted that the respondent’s marriage to Solomon Genya Nyale lasted 3 years while her marriage to the Appellant/Applicant lasted 6 years. That the Appellant/Applicant has to satisfy the court that he could not produce the evidence. That the facts in this case do not support the application as the Appellant/Applicant was involved in drafting the pleadings and that is how the two of them came together in 2006.
11. Counsel submitted that the evidence sought to be produced won’t make any difference as there is nothing new. That the application is an abuse of court process. He relied on Fiber Link Ltd versus Star Television Production Ltd [2015] eKLR where the court addressed same principles and urged the court to dismiss the application herein with costs.
12. In reply Ms Kemunto submitted that the court below found that there was no evidence of marriage. She argued that there was no evidence proving that her client helped the Respondent draft the pleadings. That the evidence in place is self-explanatory and urged the court to allow the application.
13. I have considered the application, response therein and oral submissions by both counsels. In my opinion the issue that requires my determination is whether the additional evidence should be allowed.
14. Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 are the legal basis for this application. Under Section 78 of the Civil Procedure Act:
1. Subject to conditions 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.
2. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.
Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 provides that:
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.
28. Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.
29. Where additional evidence is directed or allowed to be taken, the court to which the appeal is preferred shall specify the limits to which the evidence is to be confined and record on its proceedings the points so specified.
15. The Supreme Court in the case of Mohamed Abdi Mahamud versus Ahmed Abdullahi Mohamad & 3 others [2018]eKLR stated:-
“… 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 willful 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.”
16. The applicant has argued that the additional evidence he intends to introduce is to prove that the respondent did not have capacity to marry as she was already married to one Solomon Genya Nyale.
17. The trial court in its judgement of 4th September 2020 stated:-
“All in all, it my view and therefore the court’s finding that there was a presumption of a marriage between the petitioner and the respondent by virtue of long cohabitation and acts of general repute.
There was no documentary evidence placed before the court to prove the status of the alleged previous marriage of the respondent and therefore this court is unable to comment on the same.”
18. It is my view that the additional evidence is relevant to this matter and it is in the interest of justice that the same be adduced. I am guided by the case of Kenya Agricultural and Livestock Research Organization versus Leah Okoko & another [2022] eKLR where the court stated:-
“In my view, the additional evidence sought to be adduced is directly relevant to the matter before the court and it is in the interest of justice to have the same adduced.
Further, the adduction of such evidence will give the appellant the opportunity to rebut the same hence no prejudice will be suffered by the appellant if the application herein is allowed. As there is no cross appeal, I do not find that the additional evidence is intended to fill the lacunae in the respondent’s case.”
19. Accordingly, it is my finding that the application herein has merit and the same hereby allowed. Each party shall bear own costs.
Dated, signed and delivered at Nairobi this 30th day of August 2023 via Microsoft TEAMS
In the presence of:-
Ms. Kemunto for the Appellant/Applicant;
Mr. Angima for the Respondent; and
Mr. Arthur Ranyondo – Court Assistant
a) Spent;
b) That this honourable court be and is hereby pleased to arrest the judgement due on notice pending the hearing and determination of this application interpartes;
c) That this honourable court be and is hereby pleased to allow additional evidence in appeal to wit Mombasa HCCA No.16 of 2020, Emmanuel Hatangimbambazi versus Claudine Susan Muvandimwe through a supplementary record of appeal as follows:-
i. True copy of the certified copy of the plaint and its verifying affidavit in Mombasa Children Case No.268 of 2006, dated and filed on 14th September 2002;
ii. True copy of the certified copy of the Certificate of Urgency in Mombasa Children Case No. 268 of 2006, dated and filed on 14th September 2006;
iii. True copy of the certified copy of the Chamber Summons Application and its Supporting Affidavit in Mombasa Children Case No. 268 of 2006, dated and filed on 14th September 2006;
iv. True copy of the certified copy of the Court Order in Mombasa Children Case No. 268 of 2006, dated 15th September 2006; and
v. True copy of the certified copy of the Notice of Withdrawal of Suit in Mombasa Children Case No. 268 of 2006, dated 15th September 2006.
d) That this honourable court as a matter of right ought to admit the additional evidence by means of an affidavit and the same be filed as a supplementary Record of Appeal.
e) That the costs of this application be provided for.
2. The application is premised on the grounds therein stated and the Supporting Affidavit of the Appellant/Applicant sworn on 8th February 2022. In the said affidavit he deposed that his marriage to the Respondent was dissolved vide judgement delivered on 4th September 2020 in Divorce Cause No. 48 of 2016. Being aggrieved by the said judgement he lodged this appeal and the judgment is due on notice. He averred that he discovered new and important matter or evidence which after the exercise of due diligence, could not be produced at the time when the suit was filed and the judgement delivered.
3. He stated that the new evidence and information shows that the Respondent had contracted a statutory marriage at the time she claims to have contracted marriage with him. That the newly discovered evidence would help the court reach a different decision thus the need to arrest the pending judgement.
4. He argued that under Order 42 rule 27 of the Civil Procedure Rules, 2010 this court has power to allow additional evidence or to order for the same to be taken on its behalf. He sought review of the court’s judgement made on 4th September 2020.
5. The application was opposed by the Respondent.
6. The application was canvassed through oral submissions.
7. When the matter came for hearing on 11th July 2023 Ms. Kemunto, learned counsel for the Appellant/Applicant submitted that the application is premised on Sections 1A and 3A of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules, 2010. Further that they were seeking the leave of the court to admit new evidence at the appeal stage in form of pleadings in Mombasa Children Case No. 268 of 2006 Claudine Genya Nyale versus Solomon Genya Nyale. She further submitted that the Appellant/Applicant obtained the new evidence in January 2022 and that at the time of the hearing the Applicant/Applicant was not aware of the said case.
8. The said learned Counsel urged that the evidence they seek to introduce shows that the Respondent did not have the capacity to marry the Appellant/Applicant as she was already married to Solomon Genya Nyale. She submitted that the evidence will affect the outcome of the appeal. Counsel relied on the case of Nayan Mansukhlal Salva versus Hanikssa Nayan Salva [2019] eKLR and submitted that her client could not have obtained the evidence as the Respondent used a different name in the said proceedings. She urged the court to allow the application.
9. Mr. Angima, the learned counsel for the Respondent submitted that they were relying on the replying affidavit sworn on 4th March 2022. He argued that admission of evidence on appeal is a remedy that that can only be granted in exceptional circumstances and even then, in the interest of justice. Counsel argued that if this court allows the application then it should send the matter back to the trial court for hearing and determination. It was however urged that there was no need to do so as no exceptional circumstances had been shown.
10. Counsel further submitted that the respondent’s marriage to Solomon Genya Nyale lasted 3 years while her marriage to the Appellant/Applicant lasted 6 years. That the Appellant/Applicant has to satisfy the court that he could not produce the evidence. That the facts in this case do not support the application as the Appellant/Applicant was involved in drafting the pleadings and that is how the two of them came together in 2006.
11. Counsel submitted that the evidence sought to be produced won’t make any difference as there is nothing new. That the application is an abuse of court process. He relied on Fiber Link Ltd versus Star Television Production Ltd [2015] eKLR where the court addressed same principles and urged the court to dismiss the application herein with costs.
12. In reply Ms Kemunto submitted that the court below found that there was no evidence of marriage. She argued that there was no evidence proving that her client helped the Respondent draft the pleadings. That the evidence in place is self-explanatory and urged the court to allow the application.
13. I have considered the application, response therein and oral submissions by both counsels. In my opinion the issue that requires my determination is whether the additional evidence should be allowed.
14. Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 are the legal basis for this application. Under Section 78 of the Civil Procedure Act:
1. Subject to conditions 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.
2. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.
Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 provides that:
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.
28. Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.
29. Where additional evidence is directed or allowed to be taken, the court to which the appeal is preferred shall specify the limits to which the evidence is to be confined and record on its proceedings the points so specified.
15. The Supreme Court in the case of Mohamed Abdi Mahamud versus Ahmed Abdullahi Mohamad & 3 others [2018]eKLR stated:-
“… 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 willful 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.”
16. The applicant has argued that the additional evidence he intends to introduce is to prove that the respondent did not have capacity to marry as she was already married to one Solomon Genya Nyale.
17. The trial court in its judgement of 4th September 2020 stated:-
“All in all, it my view and therefore the court’s finding that there was a presumption of a marriage between the petitioner and the respondent by virtue of long cohabitation and acts of general repute.
There was no documentary evidence placed before the court to prove the status of the alleged previous marriage of the respondent and therefore this court is unable to comment on the same.”
18. It is my view that the additional evidence is relevant to this matter and it is in the interest of justice that the same be adduced. I am guided by the case of Kenya Agricultural and Livestock Research Organization versus Leah Okoko & another [2022] eKLR where the court stated:-
“In my view, the additional evidence sought to be adduced is directly relevant to the matter before the court and it is in the interest of justice to have the same adduced.
Further, the adduction of such evidence will give the appellant the opportunity to rebut the same hence no prejudice will be suffered by the appellant if the application herein is allowed. As there is no cross appeal, I do not find that the additional evidence is intended to fill the lacunae in the respondent’s case.”
19. Accordingly, it is my finding that the application herein has merit and the same hereby allowed. Each party shall bear own costs.
Dated, signed and delivered at Nairobi this 30th day of August 2023 via Microsoft TEAMS
In the presence of:-
Ms. Kemunto for the Appellant/Applicant;
Mr. Angima for the Respondent; and
Mr. Arthur Ranyondo – Court Assistant