Jesica Aoko Magana VS Caleb Kere Odindo AND Teresa Akinyi Wsonga

The application before court for determination is the Notice of Motion dated 16^th October, 2024 brought by the Appellant.

The application seeks for orders that the Appellant be granted leave to file additional evidence comprising of the Land Registrar’s report dated 11^th October, 2024 and the Surveyor’s report dated 30^th September, 2024 in support of her case.

The application was based on the grounds that the evidence sought to be adduced is credible and will assist the court to make a fair and just determination bearing in mind the fact that the nature of the dispute in the lower court was encroachment concerning a boundary dispute over parcel numbers KISUMU/FORT TENAN/577, 920 AND 921. That the trial court had by an order dated 23^rd March, 2017 referred the matter to the Land Registrar and Surveyor, Nyando, to determine the encroachment. That however the survey resulting in the report dated 28^th July, 2017, filed in court on 19^th September, 2017 and solely relied upon by the trial court to the detriment of the Applicant was done in the absence of the Land Registrar and the Applicant.

That whereas that survey concluded that parcel number 577 has encroached on parcel numbers 920 and 921, the survey conducted on 19^th September, 2024 by the Land Registrar and which was attended by the Respondent established that map sheet No.3 had been interfered with and that parcel number 921 is incorrectly plotted on the map since it was plotted on parcel number 577.

That the Land Registrar’s report dated 11^th October, 2024 is an official public document that has not been prepared by the Appellant, that it is credible, conclusive and incontrovertible since it is trite that disputes touching on boundaries are best determined by the Land Registrar pursuant to the provisions of section 18 of the Land Registration Act.

That the additional evidence sought to be adduced is not voluminous. That the said evidence could not have been obtained with reasonable diligence and adduced at the trial because at the time the Applicant was testifying in court, she had not had the opportunity to peruse the survey report dated 28^th July, 2017 and that a re-survey as directed by the court on 12^th September, 2018 had not been conducted owing to the fact that the Land Registrar Nyando, was transferred to Busia and the new Land Registrar was engaged with other matters and could not find a suitable date to allocate the parties.

That the evidence sought to be adduced is likely to influence and/or impact the result of the pending appeal and the suit in the trial court since it was generally acknowledged by the parties that survey was the only way to get to the bottom of the issues in dispute. That allowing the additional evidence will not prejudice the Respondent as he also attended the survey and is aware of the Land Registrar’s recommendation that an urgent re-survey be done and that the map sheet No.3 for the Fort Tenan Registration Section be revised to conform to the ground reality so that the Appellant gains her whole acreage of 4.0 Ha. being land parcel No.577.

That the Applicant will be greatly prejudiced as she risks losing a portion of her property pursuant to a patently irregular survey that relied on a defective map sheet.

The application was supported by the averments in the Supporting Affidavit sworn by the Applicant on 16^th October, 2024.

The application was opposed vide the averment contained in the Replying Affidavit sworn by Hussein B. Indimuli Advocate on 20^th November, 2024. The Respondents’ case is that in the course of the hearing of the suit before the trial court, the court having adjudged that the issue at hand was a boundary dispute, on two occasions ordered the Surveyor of the area to carry out the survey of the concerned parcels.

That only one survey was carried out some time in the month of July 2017. That the Applicant contested the survey, a fact that gave rise to the second order being issued for re-survey of the disputed parcels on 25^th January, 2019. That the second survey was never done even though the court gave several adjournments to allow the exercise to be carried out.

That both parties admitted the first report into evidence by consent which formed the basis of the judgement in the trial court.

That all along, the Applicant was represented by able Counsel and that the suit was filed on behalf of the Applicant by Counsel.

That even the suit being a boundary dispute was void ab initio the same having not been determined by the Land Registrar in the first instance. That litigation must come to an end and that the Respondent should be allowed to enjoy the fruits of the litigation.

The application was argued orally on 21^st November, 2024.

Counsel for the Applicant relied on the provisions of Section 78(1) of the Civil Procedure Act and the case of Dorothy Nelima Wafula vs Hellen Nielson & Paul Fredrick Nelson (2017)eKLR and submitted that the applicant had met the conditions for grant of the orders sought.

Counsel submitted further that the dispute is a land dispute within the purview of the Land Registrar. Counsel relied on the case of John Kiplagat and 8 Others -vs- Isaya Cheluget [2016]eKLR where the court allowed production of additional evidence.

Counsel submitted further that the suit was filed because there was encroachment. That the Land Registrar and the Surveyor did not conduct the re-survey before the hearing and that the applicant came to learn of the judgement in the year 2022.

On behalf of the Respondent, it was submitted that the Applicant had opportunity to do a re-survey. That there is no reason given why a re-survey ordered in the year 2019 was not done until the year 2023.

That the Applicant has not proved that the evidence could not be obtained earlier. Counsel submitted further that the application is an attempt to relitigate the matter.

I have keenly considered the application, the contents of the Replying Affidavit and the oral submissions made.

The appeal herein was filed on 13^th March, 2024. The Land Registrar’s report sought to be introduced as additional evidence was made on 11^th October, 2024 and the Surveyor’s in September, 2024.

Section 78(1) of the Civil Procedure Act pursuant to which the application is brought gives an appellate court power to, inter alia, take additional evidence or require additional evidence to be taken.

Order 42 Rule 27 provides for production of additional evidence in appellate court as follows;

“27(1) 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 preferred; but if:-

1. the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
2. the court to which the appeal is preferred requires any documents to be produced or any witness to be examined to enable it to pronounce judgement, 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) Where additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reasons for the admission.”

The Supreme Court in the case of Mohammed Abdi Mohammed -vs- Ahmed Abdullahi and 3 Others [2018] eKLR gave guidelines on admission of additional evidence on appeal. The court in paragraph 79 stated;

  “we therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows;

1. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice.
2. it must be such that, if given, it would inform or impact upon the results of the verdict although it need not be decisive.
3. 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,
4. 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,
5. the evidence must be credible in the sense that it is capable of belief.
6. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively.
7. whether a party would reasonably have been aware of and procured the further evidence in the course of the trial is an essential consideration to ensure fairness and due process,
8. where the additional evidence discloses a strong prima facie case of wilful deception of the court,
9. the court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in the evidence. The court must find the further evidence needful,
10. 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.
11. the court will consider the proportionality of and prejudice 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.”

The Supreme Court emphasized that it would only allow additional evidence on a case-by case basis and even then, sparingly with abundant caution.

In the present case, the additional evidence sought to be produced being reports of re-survey of the suit lands by the Land Registrar and Land Surveyor were obtained long after the judgment in the case before the trial court was delivered. The judgement in the suit was delivered on 18^th August, 2022.

The same was also long after an application for review of the judgement was delivered. The ruling which is the subject of the appeal herein was delivered on 1^st March, 2024 and the appeal filed on 13^th March, 2024.

The evidence was obtained after record of appeal had been filed and the appeal scheduled for directions on the manner of disposal thereof.

Both parties are in agreement that the dispute had been referred to the Surveyor during the hearing of the suit. That the Surveyor prepared a report which the trial court relied on in arriving at the judgement.

An order for re-survey that was made was never implemented. No evidence was availed that the Applicant requested the trial court to wait for the re-survey before she testified in the suit. It has not been demonstrated that the applicant made diligent efforts to obtain the evidence during the trial. The Applicant subjected herself to the process in the trial with the evidence that was available. She was represented by Counsel.

I have carefully read the two reports sought to be produced. They do not refer to any court order pursuant to which they were made. It appears that they are reports made at the instance of the applicant to counter the contents of the report on record made pursuant to a consent order and which was relied on in the judgement.

Guided by the provisions of Section 78 of the Civil Procedure Act, Order 42 of the Civil Procedure Rules, 2010 and the authority cited, I find that the application does not meet the criteria for allowing additional evidence to be produced on appeal.

The application is therefore hereby dismissed. Costs of the application to the Respondent.

Orders accordingly.

Ruling dated and signed at Kisumu and delivered this 23^rd day of January, 2025 virtually through Microsoft Teams Online Application.

________________

E. ASATI,

JUDGE.

In the presence of:

Maureen: Court Assistant.

Ngesa for the Applicant                  

Indimuli for the Respondent.