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Court of AppealAllowedCivil Appeal No. 45 of 2017 (lead file; consolidated with Civil Appeals Nos. 44 of 2017 and 68 of 2017)· [2021] KECA 307 (KLR)

Fanikiwa Limited v Sirikwa Squatters Group & 8 others

Court of Appeal
17 December 2021
HOHannah OkwenguSKS. Gatembu KairuJMJ. Mohammed
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal allowed banks and other late-joined parties to present extra documents in an ongoing land appeal because they never had a chance to testify earlier.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Okwengu, Kairu and Mohammed, JJ.A) delivered at Nairobi on 17th December 2021 in the consolidated appeals arising from the judgment of the Environment and Land Court (Obwayo J) of 9th February 2017, in which titles deriving from the suit property were cancelled. Civil Appeal No. 45 of 2017 (Fanikiwa Limited) is the lead file, consolidated with Civil Appeal No. 44 of 2017 (Lonrho Agri Business) and Civil Appeal No. 68 of 2017 (the estate of Mark Too). Several parties joined at the appellate stage - banks including National Bank of Kenya, Kenya Commercial Bank, Kenya Women Finance Trust, Commercial Bank of Africa and Co-operative Bank of Kenya, holding cancelled titles as security, plus Ahmed Ferej and 60 others - applied for leave to adduce additional evidence by affidavit under Rule 29 of the Court of Appeal Rules. Sirikwa Squatters Group, the successful petitioner at trial, opposed, arguing the threshold was not met and no notice of appeal had been filed. The court applied the Supreme Court's guidelines in Mohammed Abdi Mahamud and held that the joinder of non-parties at the appellate stage constitutes an exceptional situation: having had no opportunity to present evidence at trial, the applicants' proposed documentary evidence (titles and securities) is directly relevant and will assist the just determination of the appeal, with no prejudice to the 1st respondent who may reply by affidavit. The applications were allowed with 15 days for affidavits and 15 days for replying affidavits; costs were ordered to be in the appeals. This ruling is interlocutory and does not disturb the decision below.

Key legal issues

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01

Whether newly joined appellate-stage parties may adduce additional evidence under Rule 29 of the Court of Appeal Rules

Holding

Yes. Where parties were joined at the appellate stage as persons likely to be affected by the outcome, and had no opportunity to present evidence at trial, an exceptional situation exists justifying admission of their additional evidence.

Reasoning

The court applied the Supreme Court's Mohammed Abdi Mahamud guidelines. The applicants were not parties in the trial court and so could not have produced the evidence then; the evidence (titles and charges) is directly relevant to the cancelled suit properties and will assist the just determination of the appeal. The documentary evidence can be adduced by affidavit, and the objecting 1st respondent suffers no prejudice since it will have an opportunity to respond by replying affidavit.

p. 5

Legal principles established

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  • Persons who were not parties at trial but are joined at the appellate stage constitute an exceptional situation justifying leave to adduce additional evidence, since they had no opportunity to present that evidence at trial.
  • The discretion to admit additional evidence on appeal under Rule 29 can only be exercised in exceptional circumstances, applying the Mohammed Abdi Mahamud threshold.

Court orders

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  1. 1.The applications for leave to adduce additional evidence are allowed
  2. 2.Each applicant to file their respective affidavits bringing in the additional evidence within 15 days from the date of the ruling
  3. 3.The 1st respondent at liberty to file a replying affidavit within 15 days from the date of service of the applicants' affidavits
  4. 4.Costs of the applications to be in the appeals
On appeal from
Environment and Land Court
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under Rule 29 of the Court of Appeal Rules (additional evidence on appeal); appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fanikiwa Limited v Sirikwa Squatters Group & 8 others", Case Analysis (2021). Civil Appeal No. 45 of 2017 (lead file; consolidated with Civil Appeals Nos. 44 of 2017 and 68 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/307/eng@2021-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.