Habil Ndisi & 10 others v Paskali Ouma Mudakhi & 3 others [2018] KECA 234 (KLR)
The bottom line
#Kenya's Court of Appeal refused to add late valuation evidence to a land appeal but allowed the appellants to amend their appeal to seek compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the valuation report dated 15th August, 2015 should be admitted as new and/or further evidence in the pending appeal under Rule 29(1)(b) of the Court of Appeal Rules
- 2.Whether the appellants should be granted leave to amend the memorandum of appeal to introduce additional grounds of appeal and an additional relief for compensation for developments on the suit land
Key legal issues
#Admission of additional evidence on appeal under Rule 29(1)(b) of the Court of Appeal Rules
The valuation report was refused. It was prepared after the impugned judgment and could have been prepared and produced at trial with reasonable diligence; the appellants filed no counter-claim for compensation, so the report would probably not have had an important influence on the result; and the value evidence would need cross-examination, requiring reference to the trial court and causing undue delay.
The court applied the three-pronged Joginder Auto Service test: reasonable diligence, probable important influence on the result (not necessarily decisive), and apparent credibility. Because possession and development were admitted at trial and the real issues were the validity of Teresa Nyangweso's title and bona fide purchaser status, valuation evidence went to an unpleaded counter-claim. The court also noted that if it were inclined to grant compensation after hearing the appeal, it could cause the value of developments to be ascertained under Rules 1(2) and 31.
Amendment of the memorandum of appeal to add grounds and a relief
Amendment was allowed. The court has discretion to allow amendment of the memorandum of appeal, and neither the respondents nor the court identified any prejudice from introducing the additional grounds and the compensation relief.
The court treated amendment of a memorandum of appeal as a matter of judicial discretion. The respondents did not contend that the amendment would cause prejudice, and the court could see none, so in the circumstances of the case the amendments sought were allowed, with the amended memorandum to be filed and served within 14 days.
Legal principles established
#- Order 42 rule 27(1) of the Civil Procedure Rules applies to appeals in the High Court, not to appeals before the Court of Appeal; however, the principles in paragraphs (a) and (b) of that rule may constitute 'sufficient reason' under Rule 29(1)(b) of the Court of Appeal Rules justifying admission of additional evidence.
- The principles in Joginder Auto Service v. Mohammed Shaffique guide the discretion to admit additional evidence on appeal: the evidence could not with reasonable diligence have been obtained for the trial; it would probably have an important (though not decisive) influence on the result; and it must be apparently credible - the list is not exhaustive.
- Where additional evidence would require testing by cross-examination, the proper course is a direction that the evidence be taken by the trial court, but the court may decline where that course would unduly delay the hearing and determination of the appeal.
Court orders
#- 1.The application for the admission of additional evidence is dismissed
- 2.The application for amendment of the memorandum of appeal is allowed to the extent indicated in the applications
- 3.The appellants shall file and serve an amended memorandum of appeal within 14 days from the date of the ruling
- 4.The costs of the applications shall be costs in the pending appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya, Environment and Land Court at Busia
- ELC No. 1190 of 2016
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules, 2010 (appellate jurisdiction over pending Civil Appeal No. 53 of 2014)
Relief refused
#Admission of the valuation report of LR. No. Bukhayo/Kisoko/740 and its sub-divisions as additional evidence
The report was prepared after judgment and could have been obtained with reasonable diligence at trial; the appellants made no counter-claim for compensation so the report would probably not have influenced the result; admitting it with a direction that it be taken by the trial court would unduly delay the appeal
Costs
The costs of the applications shall be costs in the pending appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The principles which guide the court in exercising its discretion to admit additional evidence are summarized in Joginder Auto Service v. Mohammed Shaffique & another, [2001] eKLR
That rule obviously relates to the appeals filed in the High Court and does not apply to appeals before this Court.
The value of the suit land and the sub-divisions thereof is a matter of fact which should be tested by cross-examination and giving the respondents an opportunity to present their own evidence of the values.
(i) The application for the admission of additional evidence is dismissed. (ii) The application for amendment of the memorandum of appeal is allowed to the extent indicated in applications. The appellants shall file and serve an amended memorandum of appeal within 14 days from the date hereof. (iii) The costs of the applications shall be costs in the pending appeal.
Issues in the judgment
#The coram heading describes the decision below as a judgment dated 10th July, 2014 in ELC No. 1190 OF 2016, yet the case number is dated after the judgment date and the underlying suit referenced in the judgment is Civil Suit No. 5 of 2006; the dates and case numbers are internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Habil Ndisi & 10 others v Paskali Ouma Mudakhi & 3 others [2018] KECA 234 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 53 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/234/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.