David Mulwa Malamu v John Waweru Gakuru & another [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
Nambuye, Musinga, Murgor JJ.A.
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: David Mulwa Malamu v John Waweru Gakuru & another [2020] eKLR

1. Case Information:
- Name of the Case: David Mulwa Malamu v. John Waweru Gakuru & Peter Murage Kamanja
- Case Number: Nyeri Civil Appeal (Application) No. 31 of 2018
- Court: Court of Appeal at Nairobi
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): Nambuye, Musinga, Murgor JJ.A.
- Country: Kenya

2. Questions Presented:
The central legal issues to be resolved by the court include:
1. Whether the court should allow the introduction of additional evidence in the form of previous judgments that may impact the appeal.
2. Whether the applicant provided sufficient justification for not presenting this evidence during the initial trial.

3. Facts of the Case:
The appellant, David Mulwa Malamu, purchased a property (LR No. Nanyuki Municipality Block 8/909) from Samwel Muiruri Kariuki in good faith and subsequently sought a declaration of ownership through Civil Case No. 145 of 2009. The respondents, John Waweru Gakuru and Peter Murage Kamanja, contested this claim. The Chief Magistrates’ Court ruled in favor of the appellant on 17th September 2014. However, the respondents appealed this decision, leading to a judgment delivered by the Environment and Land Court on 19th December 2017, which reversed the earlier ruling. Concurrently, the appellant faced criminal proceedings (Criminal Case No. 611 of 2014) where it was determined that he was a bona fide purchaser. The Director of Public Prosecutions later withdrew an appeal against this criminal judgment, leaving it unchallenged.

4. Procedural History:
The case progressed as follows:
1. The appellant filed a civil suit in 2009, resulting in a favorable judgment in 2014.
2. The respondents appealed to the Environment and Land Court, which reversed the decision in December 2017.
3. The appellant subsequently sought to introduce additional evidence from the criminal proceedings through a Notice of Motion dated 25th February 2020, which was not opposed by the respondents.

5. Analysis:
Rules:
The court considered sections 3A and 3B of the Appellate Jurisdiction Act and Rule 29(1) of the Court of Appeal Rules, which allow for the introduction of additional evidence under certain conditions.

Case Law:
The court referenced several cases, including:
- Standard Resani Group Limited v. Attorney General & 2 Others [2016] eKLR, which supports the notion that uncontroverted facts are deemed accepted.
- Ladd v. Marshall [1954] 1 WLR 1489, which outlines the principles for admitting additional evidence, including relevance, credibility, and whether it could have been obtained with reasonable diligence.

Application:
The court found that the evidence from the criminal proceedings was not available during the initial trial and was directly relevant to the appeal. The appellant's claim that the failure to submit this evidence was due to his advocate's inadvertence was deemed plausible. The court concluded that the additional evidence could potentially impact the outcome of the appeal, as it vindicated the appellant's ownership of the property.

6. Conclusion:
The court granted the appellant's application to introduce additional evidence, allowing the case to be reconsidered with the new information. This decision emphasized the importance of ensuring that all relevant evidence is considered in appeals to uphold justice.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The Court of Appeal allowed the appellant to introduce additional evidence from previous judgments, which could significantly influence the outcome of the appeal regarding property ownership. This case underscores the court's commitment to ensuring that all pertinent evidence is considered in the pursuit of justice, particularly in civil matters involving property rights.

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