1. The Application for determination is Notice of Motion dated 14th June 2023, presented under Order 42 Rule 27 of the Civil Procedure Rules; Section 3A and 78 (1) (d) of the Civil Procedure Act, Section 8 of the Children Act, 2022 . The Applicant seeks the following orders: -
1. THAT Spent
2. THAT the Appellant be granted leave to produce and file additional documentary evidence in this appeal.
3. That this Honourable Court be pleased to admit the Appellant’s Supplementary List of documents dated 1st November 2022.
4. THAT this Honourable Court be pleased to admit additional evidencein the formof duly stamped M-pesa sttaements produced by the Appellant
5. THAT this honourable Court be pleased to make such further orders as it deems fitto meet the ends of justice
6. THAT the costs of this application be in the cause.
2. The Summons is supported by the ISAAC MUNYUA MICHENI sworn on 14th June 2023. The Respondent, JANE MUTHONI NTONJIRS has sworn an affidavit in opposition on 4th August 2023.
3. The Court directed that the Application be canvassed via written submissions. The Applicants Submissions and List of Authorities is dated 31st July 2023. Whilst the Respondents submissions are dated 22nd August 2023.
SUMMARY OF APPLICANT’S CASE
4. The Applicant is the biological father to the Minor subject of the proceedings. The Appellant is aggrieved by the decision of the trial Court to exclude text messages and M- PESA messages that were contained in the supplementary list of documents dated 1st November 2022 and to proceed to hold that the Appellant had relinquished his parental rights.
5. It is urged that it is imperative that the Court considers this evidence so as to appreciate the contribution by the Applicant towards the care and maintenance of the child.
6. It is urged that the Respondent will not suffer any prejudice if the orders sought are granted.
7. The Applicant identifies the following as the issues for determination
a) Whether it is in the Child’s best interest for the orders sought to be granted?
b) Whether this Court has power to grant the orders sought?
c) Whether the Respondent will suffer any prejudice if the orders sought are granted?
8. On the 1st Issue it is urged that it is in the best interests of the Child as on account of the orders of the Court, the Child is being denied an opportunity to bond with the biological parent. The Applicant submits that he should be allowed to tender the evidence that demonstrates his ability to support the child.
9. On the 2nd issue as to whether the Court has power to grant the orders sought, the Applicant relies on Section 78 of the Civil Procedure Act (d) and Order 42 rule 27 (1)(a) of the Civil Procedure Rules, 2010.
10. The Applicant relies on the decisions in Sharon Mwende Ndo v Rahab Nyangima John & Anor [2022] eKLR in which the Court outlined the governing principles for admitting additional evidence in an appellate Court.
11. On the 3rd issue, it is submitted that the Respondent will not be prejudiced if the Application is allowed, as it is not voluminous and the Respondent has had an opportunity to examine the same and respond accordingly as she was duly served.
12. The Applicant relies on the decision in Kenya Agricultural and Livestock Research Organisation v Leah Okoko & Anor [2022] eKLR. The Applicant relies on Article 159(2)(b) of the Constitution of Kenya, 2010 to urge that the Court be guided by the overarching objective of delivering justice.
SUMMARY OF RESPONDENT’S CASE
13. The respondent in opposing the Application submits that the Applicant sought to introduce the additional evidence after she had closed her case and the matter was coming up for defence hearing.
14. She argues that the Court was right in doing so as she would have been prejudiced as she had already closed her case. That she would be prejudiced further if it were admitted at this stage as she would not have an opportunity to respond to it.
15. It is argued that the Applicant had in his possession the evidence that he seeks to adduce and the failure to do so should not be visited on her.
16. The Respondent identifies the following issue for determination
a) Whether leave should be granted to the Applicant to adduce additional evidence at the appeal stage
17. The Respondent cites Section 78 of the Civil Procedure Act and Order 42 rule 27, 28 and 29 of the Civil Procedure as the relevant law. The Respondent relies on the decision of the Supreme Court in Mohammed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 other [2018] eKLR and the decision in Fibre Link Limited v Star Television Production Limited [2015] eKLR
18. The Respondent also cites the decision of the Court of Appeal in National Cereals and Produce Board v Erad Supplies & General Contracts Ltd and in The Administrator, H. H. The Aga Khan Platinum Jubilee Hospital v Munyambu (1985) KLR 127
ANALYSIS AND DETERMINATION
19. It is common ground that the Appellant and Respondent are the biological parents of the child subject of these proceedings. The dispute revolves around the parental rights of the two in relation to the Child following the severance of their relationship.
20. The Trial Court in its judgment delivered on 24th March 2023 found that the Applicant had ‘relinquished his parental rights’. In arriving at this decision, the Court discounted the evidence furnished by the Applicant and concluded that the Applicant was a stranger to the child and therefore not in the best interests of the Child for him to re-enter her life at this stage
21. The Applicant has filed a substantive appeal in which he challenges the judgment of the Court and seeks vide this Application to admit at appellate stage evidence that the trial Court expunged from the record.
22. It is not disputed that the Applicant sought to introduce this additional evidence at the close of the Plaintiff’s case.
23. Having considered the pleadings and submissions filed herein and surmised the facts and guided by the relevant law I discern the issue for determination to be whether the Applicant should be granted leave to adduce additional evidence.
24. I have considered the authorities cited by the Applicant and find that they are distinguishable from the current case as in this case the trial Court has ruled on the admissibility of the evidence that is sought to be introduced.
25. It is not disputed that the Applicant sought to introduce the supplementary list of documents at the close of the Plaintiff’s case and at the eve of the defence hearing. It was not demonstrated to the lower court and to this Court this was not an attempt to seal loopholes in the defendant’s case after the Plaintiff had testified.
26. I do not agree that this a technical issue that does not go to the root of the fair trial rights of the Respondent. Article 159 (2) (d) cannot come to the aid of a litigant whose failure to follow procedure touches on the fair trial rights of the adversary.
27. I must state that best interests of the child principle is not a magic wand that waves away a party’s obligation to meet the legal threshold when seeking orders of the Court and especially on the merit of the Application.
28. In the current application, the Applicant by sidestepping the reasons for which this evidence was excluded in the trial court has failed to meet the criteria set out in Order 42 rule 27 (a) of the Civil Procedure rules. That is the Applicant has failed to demonstrate that the Court has refused to admit evidence which ought to have been admitted. (Emphasis Supplied)
29. Ground 9 of the Memorandum of Appeal lodged herein states that the Appellant challenges the judgement on the ground that
The Learned Trial Magistrate erred in law and in fact in rejecting the Appellant’s evidence that he contributed to the Child’s financially and sought to know about her well being which efforts were frustrated by the respondent
30. The exclusion of the evidence is therefore a substantial ground of appeal and probably better canvassed at the hearing of the Appeal.
31. I observe that at the core of the Appeal is whether the Learned Magistrate erred in law and in fact in finding that the Appellant had relinquished his parental responsibility and denying him an opportunity to exercise his parental rights with regard to the minor.
32. I take the view that the refusal to admit the additional evidence is not prejudicial to the appeal as I have observed that this is a substantive ground of Appeal and further the Appeal challenges the Court’s determination that parental responsibility was and can be relinquished.
33. For the foregoing reasons I dismiss the Notice of Motion in its entirety and make the following orders
a) The Appeal is hereby admitted. The same to be canvassed through written submissions. The Appellant to file and serve Submissions within 21 days. The Respondent to file submissions within 21 days of Service. The Matter be mentioned on 18th January 2024 for parties to high light submissions.
b) Each party to bear their own costs
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS…24th ……DAY OF ……November……...2023.