Amos Tunje Barisa v Lawrence Mwachai Gambo [2020] eKLR Case Summary

Court
High Court of Kenya at Malindi
Category
Civil
Judge(s)
Hon. Justice R. Nyakundi
Judgment Date
October 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Amos Tunje Barisa v Lawrence Mwachai Gambo [2020] eKLR


1. Case Information:
- Name of the Case: Amos Tunje Barisa v. Lawrence Mwachai Gambo
- Case Number: Civil Appeal No. 31 of 2020
- Court: High Court of Kenya at Malindi
- Date Delivered: 29th October 2020
- Category of Law: Civil
- Judge(s): Hon. Justice R. Nyakundi
- Country: Kenya

2. Questions Presented:
The central legal issue presented before the court was whether the appellant, Amos Tunje Barisa, should be granted leave to adduce additional evidence, both viva voce and documentary, in support of his appeal regarding the burial site of a deceased individual.

3. Facts of the Case:
The appellant, Amos Tunje Barisa, and the respondent, Lawrence Mwachai Gambo, were involved in a dispute concerning the burial site of a deceased individual. The case arose from the judgment of the Senior Principal Magistrate, Hon. D. Sitati, in SPMCC No. 136 of 2020 Kilifi, delivered on 8th July 2018. The appellant sought to introduce new evidence, claiming it was crucial for determining the appropriate burial site, which had been contested in the trial court.

4. Procedural History:
The case progressed from the trial court, where the initial judgment was made regarding the burial site, to the appellate court, where the appellant filed a notice of motion on 27th July 2020. This motion sought leave to introduce additional evidence, supported by an affidavit from Diana Mwachai. The respondent opposed this application, arguing that the appellant was aware of their weak case and that the additional evidence was an attempt to strengthen it post-trial.

5. Analysis:
- Rules: The court considered several statutes and legal provisions, particularly Section 1A & 3A of the Civil Procedure Act and relevant rules from the Civil Procedure Rules, which grant the court discretion to allow additional evidence under specific circumstances.
- Case Law: The court referenced *Ladd v. Marshall* (1954) and *Mzee Wanje & others v. Saikwa & others* (1976 – 1985) EA 364 CAK, establishing that additional evidence must be credible, relevant, and could not have been obtained with reasonable diligence before the trial. The case of *Hon. Bangirana Kawoya v. National Council for Higher Education* further clarified the criteria for admitting additional evidence.
- Application: The court analyzed the affidavit from Diana Mwachai, which indicated that the new evidence pertained to the deceased's final resting place and was significant for the appeal. The court found that the proposed evidence was likely to influence the outcome of the case and was credible, justifying the decision to allow its admission.

6. Conclusion:
The court ruled in favor of the appellant, granting leave to adduce additional evidence. This decision highlighted the court's discretion in allowing new evidence that could impact the resolution of the case, particularly in matters concerning burial rights and respect for the deceased's wishes.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the judgment was delivered by a single judge.

8. Summary:
The High Court of Kenya at Malindi granted Amos Tunje Barisa leave to introduce additional evidence in his appeal against Lawrence Mwachai Gambo regarding the burial site of a deceased individual. The ruling emphasized the importance of allowing credible and relevant evidence that could significantly affect the case's outcome, reflecting the court's commitment to justice in civil disputes involving sensitive issues such as burial rights. The decision underscores the legal standards for admitting additional evidence, which may set a precedent for future cases.

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