Governors Balloon Safaris Limited v Zacharia W. Baraza t/a Siuma Auctioneers [2016] KEHC 4608 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  484   OF 2015

GOVERNORS BALLOON SAFARIS LIMITED …………….…...….APPELLANT

VERSUS

ZACHARIA W. BARAZA T/A SIUMA AUCTIONEERS ….………RESPONDENT

RULING

1. This ruling determines  the application by way of Notice of  Motion dated  22nd   February  2016  brought under  certificate  of urgency  by the applicant/appellant  Governors  Balloon Safaris  Limited. The application is brought under the provisions of Order 42 Rule 27(1) (b) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. In the application, the applicant seeks orders.

1. Spent

2. That the appellant be granted leave to produce additional documentary evidence in the appeal.

3. That the costs of this application be provided for.

2. The application was predicated on the grounds that:

a) The present appeal originates from a decision by the Auctioneers Licensing Board (AUCTIONEERS LICENCING BOARD) and by dint of Section 25 of the Auctioneers Act, the appeal is intended to be an expeditious and or summary process.

b) The underlying  subject matter  of the proceedings  comprises of  various  trading assets  and or vehicles  of the appellant, which the appellant  contends  were unlawfully  attached by the respondent  contrary to the law as espoused under the Auctioneers  Act Order  5 of  1996.

c) The additional documentary  evidence that the appellant wished  to produce  and rely upon  in the appeal  is a letter from the  judiciary, office of  the Ombudsperson which has subsequently established  that the Disciplinary Committee   relied on  false and  perjured  evidence  when making the decision appealed  against.

d) It is in the interest of justice that the above evidence be produced in the appeal for the fair determination of the appeal in order to prevent a miscarriage of justice.

3. The application  was further  supported by an affidavit  sworn by  Justin Grammaticas the Executive Director  of the appellant company who deposes that the ruling  by the Auctioneers  Licensing Board contained in their letter  of  2nd  October  2015  was  based on an  affidavit  which was  false  and which  annexed  Notice of  proclamation  which were  never filed in court  on 8th November  2014  as alleged  by the  respondent; that the  said new evidence  is crucial to the determination of the  appeal  and that if  allowed will prevent miscarriage  of justice. The affidavit  annexes the letter dated  25th January 2016  from the Judiciary Ombudsperson Mr Kennedy Bidali claiming that   their office  had cross checked with the Deputy  Registrar, High Court  Commercial Division who had  confirmed that the  said documents  filed by the  respondents  on 8th November  2014  were suspect  as they did not   form part of the court  record.  That letter was   addressed to Department of Criminal Investigations and copied to Sharply Barret and Company Advocates.

4. The application is opposed by the respondent Zachariah W. Baraza T/A Siuma Traders who filed an affidavit sworn on 2nd March 2016.  In the said affidavit, the respondent  contends that  the application by  the appellant/applicant  lacks merit  and amounts to an abuse of  court process and should be dismissed  with costs; that the admission of ‘new’ evidence  which was not  produced  to the Auctioneers Licensing Board  amounts  to the appellate  court hearing  the matter afresh and amounts to a  miscarriage of justice  since:

a) The office of the Ombudsman had never contacted the respondent to give him a hearing over their purported investigation.

b) The letter from the Ombudsman is inconclusive in its findings as to the authenticity of the proclamation notice.

c) That it  was  the registry  which stamped  the proclamation  notice   and the respondent   did not notice   that the  notice   was stamped  8th November  2014  until  the time the  complaint   was being  heard and  that such  error  had to be explained by the court  registry itself.

d) That such errors  in stamping documents  are common  place  as shown by the appellant’s  own  notice of motion  dated  21st  July 2015  bearing  two stamps.

e) That there is an order in HCCC 461/2008 for the applicant to pay  the respondent’s  costs which  have not been  settled  to date and that despite  the appellant’s  attempts  to appeal against costs vide  CA  32/2015, the Court of Appeal  dismissed their application for  stay of execution  pending appeal;

f)  that it  was after the High Court  in HCC 461/2008  decision   refusing  to set aside  orders on costs as  taxed  that the applicant filed  a complaint  before Auctioneers Licensing Board  hoping  to procure  the release of  the attached goods  without paying costs ordered by  the Court  in HCC 461/2008;

g) that the  applicant is a vexatious  litigant  and hence this court  should not  entertain the present application and that the applicant  had  not met the threshold  required for the orders sought.

5. The parties’ advocates agreed to canvas the application by way of written submissions.  The applicant’s submissions  dated  16th March 2016  were filed  on 16th March 2016 whereas  the respondent’s  submissions  dated  21st  March  2016  were filed  on 22nd March  2016.

6. In their  submissions, the applicants  maintained  that the  new evidence   was not before the lower   court or  tribunal  at the time  when  the decision  appealed  against  was  made.  They relied on Sadrudin  Sarrif  Vs Tarlochan Singh S/OJwala Singh [1961] EA 72  and Wanje  V Sakwa  [1984] KLR  275 which decision  set out  the principles  upon which an appellate court in  civil cases  will exercise  its discretion in deciding  whether  or not  to receive further evidence  and  in what circumstances,  which decisions   are of the Court of Appeal and which are  binding  on this court.

7. Applying the said principles to  the instant  case, the applicant  maintained that at the time  when the reference   was heard before the Auctioneers Licensing Board, the appellant  had no reason  to believe or know that  the  respondent  had committed  the acts  of fraud  apparent  in exhibit  JG 2 which had a forged  court stamp; that the respondent filed  its replying affidavit on  the eve of the  hearing of the disciplinary  proceedings thereby giving  the  applicant no time to check the  correct position  from the court  file  regarding the filing of the  alleged  proclamation; that the applicant  seeks to introduce  the  best  evidence  in the determination  of the crucial issue in the appeal regarding  the validity of a document  allegedly filed in court by the respondent; the evidence if allowed  will have  an important bearing on the appeal and may in fact  determine the appeal; the credibility of the evidence  cannot be  challenged  taking into consideration  that it originates  from the court  record, and is  officially given by the Ombudsperson relying on  official  confirmation given to him  by the Deputy Registrar of  the  High Court; and that the evidence  corroborates  the appellant’s evidence.  The applicant urged this court to allow its application with costs.

8. In the respondent’s  written  submissions, it  was contended  that the application by the  applicant is untenable and that it amounts to asking this court  to rehear the complaint before  the Auctioneers Licensing Board  which  it does not   have jurisdiction to hear; that the letter  from the Ombudsperson  dated 25th January 2016  is inconclusive  in that it does not  put the issue  of whether  the  proclamation notices  were  stamped by the court  or not but  merely asks the Director of Criminal Investigations to  investigate  to establish whether a  crime had been committed, which inconclusiveness cannot  affect  the  findings  of this court   when it  hears  the substantive appeal.  Reliance  was placed on James Mwangi Nganga  Vs Kenyatta University Council &  4 Others  [2009] e KLR  where the Court of Appeal  laid down  conditions that must be  satisfied  before the  court’s discretion can be invoked or exercised  in favour of the applicant in circumstances as those prevailing in this case.

9. The respondent maintained  that the  purported  new evidence  would not   conclusively determine  this  appeal and  that to admit the said new  evidence  would be  in breach of the rules of  natural justice   as the respondent will not  have a chance to  rebut  that evidence or even question its  veracity  since the  Ombudsman  never gave  the  respondent a hearing  under Article  47  of the Constitution and the provisions  of the Fair Administrative   Act of  2015.

10. It  was   further  submitted by the  respondent that  the applicant  was trying to  fill in the gaps  and omissions  in its case  by seeking to introduce new evidence on appeal; that no explanation  had been provided as to why the applicant never  sought  an adjournment  before the Auctioneers Licensing Board  in order for  the applicant to obtain  this new  evidence. More reliance  was placed  on the English Decisions in LADD  V Marshall [1954] 1 WLR 1489 and Skone   V Skone [1971] KLR cited  in James Nganga  case (supra)  where the courts  stated that  for  new evidence  to be admissible, it must  be shown that the  evidence  could not  have been  obtained   with reasonable  diligence  for use at the trial and that what the applicant was currently doing was to try and make up for its failure to adduce proper evidence before the AUCTIONEERS LICENCING BOARD in order to build a strong case on appeal hence, it  had not fulfilled the conditions  for granting  of the orders sought and therefore the  application should be  dismissed  with costs  to the respondent.

Determination:

11. I have  carefully considered the application for leave to adduce  additional evidence  on appeal, the opposition  thereto  and the parties’ advocates’  rival  submissions  together with statutory and case law  relied on   by both parties.

12. In my view, the only issue  for determination   is whether  the applicant  has on a balance  of probabilities satisfied the conditions  for grant  of the orders  sought for  leave to be granted  to the  applicant to  adduce additional  evidence  on appeal.

13. The substantive  law relating to adduction of additional evidence on  appeal  is the provisions of Section 78(1) (d) of the Civil  Procedure Act whereas  the procedural law  is Order  42  Rule  27  of the Civil Procedure Rules.  Under Section 78 (1) (d) of the  Civil Procedure Act,

“78(1) subject to such conditions and limitations as may be prescribed, an appellate court shall have power-

a. to determine  case finally;

b. to remand a case;

c. to frame issues and refer them for trial;

d. to take additional evidence or to require the evidence to be taken;

e. to order a new trial”

14. Order 42 Rule 27 of the Civil procedure Rules provide that:

27(1) the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if-

a. The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted;

b. The court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

c. The court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined

(2) wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.

Rule 28 sets the mode of taking that additional evidence on appeal.

15. From the above provisions, it is clear to me that the power to call additional evidence on appeal is a discretionary power and from case law binding on this court as cited by both parties’   advocates, that power must be exercised very sparingly and with great caution.  It is a discretionary power that should not be exercised so as to bring in contradictory evidence as opposed to additional or new evidence.  To bring in contradictory evidence would in effect be to rehear and retry the case, contrary to the spirit and letter of section 78 of the Civil Procedure Act.

16. The power to allow adduction of additional evidence is a power which is not intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case.  The discretion  is not meant to authorize  admission of  evidence for  the purpose of filling  up the lacuna  and filling up gaps  in evidence  nor to enable  a party to make out  a fresh case on appeal.  As  was  correctly  submitted by the respondent’s  counsel relying   on the Court of Appeal   case ofJames Mwangi Nganga  V Kenyatta University  Council and 4 Others; (supra) LADD V Marshal  and Skone V Skone (supra), an applicant  must demonstrate  that  such evidence  could not  have been  obtained  by reasonable  diligence  before and  during the  hearing and  that it  would have  likely to have  affected  the result of the suit.

17. From the  principles  set out  in the cited  authorities,  it is clear that if the evidence  which  is sought to be adduced was either  in possession of a party at  the time of the  trial or which by proper diligence  might have been  obtained is either not produced or  was not produced  or  was not procured, and the  case is decided  adversely  to such party, no  opportunity  for producing that  evidence ought to be given to such a party. In LADD V Marshall [1954] 1 WLR 489 page 491 Lord Denning stated  (and as approved in K. Tarmohammed V Lakhani [1958] EA 567 – that:

“ To  justify the reception of fresh  evidence  or a new trial, three  conditions must be fulfilled: first, it must be shown that  the evidence  could not  have been obtained  with reasonable  diligence  for use at the trial;

Secondly, the evidence must be such that if given, it would probably  have been an important  influence  on the result  of the case,  though  it need not  be decisive;

thirdly, the evidence must be  such  as is  presumably  to be believed or in other  words, it must be  apparently credible  though it  need not be  incontrovertible.”

The court further stated that:

“……..  except on grounds of fraud  or  surprise, the general rule  is that  an appellate  court will  not admit  fresh evidence  unless it  was not  available  to the party  seeking  to use it  at the trial or that  reasonable diligence  would not  have made it  so available …….”

18. The question is whether the applicant herein has demonstrated that it has fulfilled the above conditions for this court to allow adduction of new or additional evidence. From the available  evidence on record and as submitted by the parties’ advocates, the  applicant  was aware of the   respondent’s  replying affidavit  sworn on 22nd September  2015 by Zachariah  Baraza  annexing a letter to  court dated  7th November  2014  and  notice of  proclamation for the  same date showing the proclaimed goods  and having a court  stamp of  8th November 2014.  After the  dismissal of the Reference/complaint  by the applicant against the  respondent by the Auctioneers Licensing Board, the applicant embarked  on an investigative  venture  of seeking to establish the  genuineness of the ‘filed’ documents  showing there  was a proclamation  of the applicant’s properties  on  7th November  2014  by the respondent and that   it  was  not until  the  Judiciary Ombudsman cross checked   with the Deputy Registrar of the court  that  it  was alleged the stamped  documents  were not  part  of the record  hence he wrote to the  Directorate of  Criminal Investigations to investigate  the matter to determine  if an offence had been committed.  Before the applicant could receive  the conclusive  results of the said  requested investigations, it filed this application seeking for  leave to adduce  additional evidence, annexing the said  letter of  the Ombudsman  which was   merely instructing  the police sleuths  to investigate  the matter.  To date, the results of the intended investigations have not been availed.

19. The  question therefore is, was  such ‘evidence’ conclusive  of an  alleged  forgery of a court  stamp and secondly, was the ‘new evidence’ apparently credible  and or presumably  capable of being  believed?  Thirdly, was that ‘new evidence’?

20. It was the contention of the applicant before the AUCTIONEERS LICENCING BOARD that there was no proclamation of the goods prior to their attachment and or taking of possession thereof by Siuma Traders Auctioneers represented hereto by Mr Zachariah Baraza.  However, in a rejoinder to that allegation by the applicant before the  Auctioneers Licensing Board, the respondent Auctioneer  filed a replying  affidavit  sworn on 22nd September  2015  annexing  copies of  a letter dated 7th November  2014  to court  returning   the copies of  Notice of Attachment  dated 7th November  2014  and filed in court on 8th November  2014.  In the said  replying affidavit  by the respondent, at paragraph  4 thereof, the Auctioneer  deposed that on 7th November  2014 he  proceeded to the applicant’s premises  and issued  a proclamation notice  to the Manager  of the applicant  company who declined  to sign the proclamation notice as  required under the law  and at paragraph 5 of the same affidavit, the respondent stated that  he filed the  said  proclamation  notice in court  and at paragraph 6, he deposed that he  was  accompanied  by one Mr Nangalama  who signed the proclamation notice as a witness and on 17th November  2014 is when he went to collect  the proclaimed goods, stored them at  Leakey’s Storage Ltd and advertised  their sale  in the  Star Newspapers on 19th November 2014 as required by the Auctioneers Rules.  The said respondent at paragraph 13 of his affidavit annexed ‘ZB1’ a bundle of documents which included the documents with a clear court stamp and dates referred to in the earlier paragraphs of the affidavit. The respondent vehemently denied the applicant’s allegations that he had flouted Rule 12 of the Auctioneers Rules or at all.

21. From the decision of the Auctioneers Licensing  Board  communicated to the applicant,  it is apparent  that the issue of  whether the  documents  which the respondent annexed to his  replying affidavit of 22nd September  2015  were genuine or not  was  fully canvassed and a decision reached.  There is no evidence that the Board refused to admit that evidence. Although the applicant claims that  the said documents   were allegedly  ‘received’ in court on a Saturday  which  was not a working day and that they were only filed 2 days   prior to the hearing,  it is  not disputed that the  applicant  received  those documents  with an alleged  forged court  stamp  before the hearing  and therefore had an opportunity   to  not only peruse  and claim that  they  were ‘received’ in court on a Saturday  which  was not a working day, but to proceed to the registry  and counter check the fact of  whether indeed  the documents  had been ‘filed’ and or  whether  they formed  part of the record  wherein they were allegedly filed. Furthermore, the issue of whether or not the documents were filed in court on a Saturday and or whether they were genuine formed part of the AUCTIONEERS LICENCING BOARD decision.

22. Indeed, the calendar for 8th November 2014 shows the date to have been a Saturday. But the question is, is it absolutely not possible for documents to have been stamped with a dated stamp for 8th November 2014?  And  if not, what diligent steps  did the applicant  take to get  the registry staff or Deputy Registrar  to either swear  an affidavit or to appear before the Auctioneer Licensing Board  at the hearing as  witnesses to discount the receiving and or presence of those  documents  in the court file  as contended by the respondent?  The applicant  in this case, regrettably, though  represented by an advocate at the Auctioneers Licensing Board, has  not explained that  which prohibited  him from cross checking  with the court file to establish  the genuineness  of the respondent’s  deposition  that he had  filed the notice  of  proclamation  in court on  8th November  2014, since the  documents  had a court  date stamp  showing  they were received by the Court and in relevant Registry.

23. Secondly, this court is not persuaded  that the letter by the Judiciary  Ombudsman  is the same  as the ‘evidence’ which the applicant could have   produced  at the hearing before the Auctioneers Licensing Board and that  that letter or  new evidence  as alleged  would  have  had an  important  influence  on the case, in as  much as  it need not  be decisive.  This is so because the letter to the Directorate of Criminal Investigations Department by the Judiciary Ombudsman is not a conclusive investigation report of what the Ombudsman had found out but a request for investigations into the allegations.

24. Thirdly, this court  does not  find that  the so called ‘new’ evidence  is such  as is presumably to be  believed and or  apparently credible  although it  need not be  inconvertible. I find that the applicant’s  application is an attempt to fetch new  evidence  as an unsuccessful litigant who had the opportunity  to peruse  the annexed  documents  and challenge  their genuineness  but did not  and now  wishes to patch up the weak points  in his case, or to fill up the lacuna and gaps  in evidence  in order  to make up a fresh case  on appeal. This is compounded by the fact that my perusal of the Notice of Appeal and the grounds thereof date 19th October, 2016 reveals that under Grounds 5 and 6 of the Appeal, the applicant herein has challenged the findings of the Auctioneers Licencing Board…. “when it acted upon and relied on the alleged proclamation attached to the Respondent’s affidavit to make a finding that there had been  a proper and valid proclamation by the Respondent in the face of some listed alleged undisputed evidence or facts namely that:

a) That the proclamation bore court stamp of the High Court of Keya dated 8th November, 2014, which was a Saturday, a day when courts are closed, and the Curt Registry does not receive and stamp documents;

b) In the absence of any evidence from the Respondent to explain how he accessed or obtained a court stamp on a Saturday, the court stamp on the alleged proclamation was plainly a forgery;

c) It was a serious criminal offence under the Penal Code punishable by a jail sentence of seven years for the respondent to utter and produce as evidence a document bearing a false or forged court stamp.

6. the Auctioneers Licensing Board erred in law and fact in receiving and acting upon a purported proclamation bearing a forged or false court stamp to establish a fact in favour of the respondent that the proclamation was genuine.

25. From the above grounds of appeal, no doubt, the applicant herein had already established that there was a false or forgery of the court stamp used in the stamping of the proclamation. That being the case, what new evidence is the applicant therefore seeking to adduce in this appeal? Glancing at  the intended evidence, this court is  not  persuaded  that the applicant   acted with   reasonable   diligence  to get that “evidence”  before and  during  the trial and as inconclusive  as that cross  checking  is, it is  doubtful  that it is the kind of evidence  that would  have influenced  or affected  the result  of the complaint.

26. I reiterate that the letter  by the Judiciary Ombudsperson  is equally an allegation being  put to the Director  of Criminal Investigation to  investigate  and establish the truthfulness of the preliminary  findings  by the Deputy Registrar  and as notified  to  the Judiciary /Ombudsperson by the Deputy Registrar. It is not a conclusive fact of forgery or false court stamp.  In my view, it did not have to take the Judiciary Ombudsman to cross check the facts or status of those documents produced before the AUCTIONEERS LICENCING BOARD to determine whether they were authentic or not. That information relating to the “suspect” documents could still have been obtained from the Deputy Registrar directly even before the Ombudsman was informed to cross check with the Deputy Registrar. The applicant has not demonstrated to this court what hurdles if any, it encountered in its diligent attempts to cross check with the Deputy Registrar the authenticity of those court stamped documents at the trial or even after the trial, having fully submitted before the AUCTIONEERS LICENCING BOARD that they were a forgery, before approaching the Judiciary Ombudsman.

27. Furthermore, the Judiciary Ombudsman’s letter contains nothing but allegations and not facts or evidence. He does not state that he perused the subject file and confirmed the ‘suspect” documents to be missing therein. He states in that letter to DIRECTORATE OF CRIMINAL INVESTIGATIONS that the Deputy Registrar  had notified  him that the ‘documents  were suspect  as they did not form part of the court record  and called on the Director  of Criminal Investigation to investigate  the authenticity of the  documents  with the intention  of prosecuting  liable  parties  if a crime had been  committed.  That  letter is dated  25th January 2016  in response  to a complaint  dated 9th December   2015  which was  lodged  after the  decision  of the Auctioneers  Licensing Board  dated  2nd   October  2015  wherein it  was found inter alia that the Proclamation  was admittedly court stamped 8th November   2014 as forwarded   to court vide  dated 7th November 2014.

28. This court notes that the Auctioneers  Licensing Board also conclusively determined the issue of the applicant  alleging that  the  proclamation  was a  forgery because it  was  stamped  on 8th November  2014  which  was a Saturday and the Board held that  “that is an issue  which  should have been  raised  and adequately addressed  by  the court  which issued  the  warrants and stamped the  proclamation notice…….”

29. That being the case, I find that the issue of the letter of the Ombudsman being new evidence in this matter is not true since the issue  of whether  or not  the court  stamped  proclamation   was a forgery  was canvassed  by  the parties  who were all ably represented by competent  advocates.  That evidence, in my view, therefore, was available at the time of the trial and could have been procured by reasonable diligence (See Birkett LJ inShedden V Patrick and the AG.  CLR.1 SC and Dir 545 where it   was held inter alia     “….  It was not shown that this evidence was not available   at the time of the trial or could not by reasonable diligence have been procured.”

30. At the  trial, nothing prevented  the applicant,  upon receiving the replying  affidavit  and annextures   of stamped  proclamation, from seeking to obtain clarification  from the subject court file  HCC 461/2008 whether indeed  those documents  filed two days  to the trial were duly received or  filed in court.  The  applicant cannot, in my view,  allege  trial by  ambush at this stage as it had the  opportunity to seek leave of court  to diligently peruse  the documents  and cross  check with the Deputy Registrar.  It did not have to take the Judiciary  Ombudsman to cross check the facts  or status  of those documents produced to determine  whether they  were authentic  or not.  That information relating to the alleged ‘suspect’ documents could still have been obtained from the Deputy Registrar directly even before the Ombudsman was informed to cross check with the Deputy Registrar.

31. There is nothing on record to show that the Ombudsman called for the original file and that he personally verified the record and found that the documents were “suspect”?  What  he  was  writing is what he had been told was “suspect” documents which, in my view, was hearsay and such evidence cannot be  admissible  ( See Kinyatti V Republic  Nairobi [1984]eKLR CA 60/1983 Kneller JA, Chesoni & Nyarangi Ag JJA  where the Court of Appeal made it clear that

“  The rule  against  hearsay is that  a statement  other  than one  made by a person  while giving  oral evidence  in the proceedings  is inadmissible   as evidence  of a stated  fact…Evidence of  a statement  made to a witness   by  a person  who is  not called  as a witness  may or  may not be hearsay.  It  is hearsay  and inadmissible when  the object  of the evidence  is to establish  the truth  of what  is contained  in the  statement.  It is not hearsay and is not admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made.”

32. In the instant case, the fact of the court stamp having been made on a Saturday is not a new fact.  There is no letter written by the Deputy Registrar or an affidavit verifying the correctness of the allegations by the Judiciary Ombudsman that the documents were suspect.  The applicant  did not,  in support of this  application, even attempt  to get the  affidavit of the Deputy Registrar  to explain how  documents, properly date   stamped  by the court were not  on the court   file and or  whether  that court stamp  was  genuine  and or why the court stamp was for 8th November  2014   which  was a Saturday.

33. In my view, documents do not become a forgery merely because they bear a court stamp of a Saturday. Further, in the absence of any conclusive investigations as to whether any offence was disclosed by the fact of the respondent having his documents not on the court file as alleged by the Judiciary ombudsman, there is no new and credible evidence to prove such forgery. In fact, the applicant’s own ’ copy of  Notice of Motion by the  applicant annexed as “ZB 1”  has two date stamps  of 21st July 2015 crossed out and 22nd  July 2015 stamped as the correct filing  date, a clear indication that indeed court  registry staff  do  make errors when receiving  documents. Further, that the error of court stamping documents with an incorrect date stamp could only have been explained by the court registry is not disputed.

34. However, the applicant  chose  not to avail any of the court registry’s staff to swear an affidavit to explain circumstances  under which the documents  were stamped   8th November  2014  which  was on  a Saturday.

35. The applicant relied on the two cases of Sadrudin Saffiff Vs Tarlochan Singh S/o Jwalla Singh and Wanje V Saikwa (supra) to support   his propositions.  In the first case  the Court of Appeal   did allow  the adduction of new evidence on appeal and held inter alia: that-

i. ……

ii. As the question of illegality arose  ex improvise  in the magistrate’s court, it  was completely within  the discretion of the Supreme Court  to admit fresh  evidence  on application  and to have  denied  the application would have  been to risk  denial of justice  to the respondent

iii. ………………”

36. However, the above case can be distinguished from this case  in the sense that   in the above case, the Court of Appeal  made it clear that "the additional evidence  was only admissible  on appeal  because  the defense of  illegality  was not pleaded  in the lower court and therefore the  question of whether  evidence of  legality could be  admitted on appeal and answered  that  question in the affirmative."

37. In this case, the  issue of  whether or not  the date  stamp  was false or a  forgery  and whether or not  the notices  of proclamation  were filed  in court on 8th November  2014   which was a Saturday was raised by the  applicant  before the Auctioneers Licensing Board   and responded to by the Respondent by way  of a replying  affidavit  sworn on 22nd September  2014  annexing  thereto those  Notices  of proclamation. The applicant  then did extensively submit  on the said documentary evidence  as to it being a forgery and  from  thereon  the Auctioneers Licensing Board  made  a conclusive  decision  which has  been appealed  against.  It is not true therefore, to allege in this application that the issue of forgery or illegality of the filing of the notice of proclamation is a new matter.  It was pleaded and canvassed before Auctioneers Licensing Board and a decision made on it.

38. In addition, there is no evidence that the issue of forgery of the court stamp was under investigations at the time of the hearing of the complaint by the Auctioneers Licensing Board. The applicant, from the letter by Ombudsman to the Director of Criminal Investigations Department dated 25th January 2016 has only sought to show that it has lodged a complaint to the judiciary/Ombudsman who has asked the Director of Criminal Investigations to investigate the matter.  It  has not demonstrated that  the  question of illegality of the ‘filed’ documents  is a new  or fresh matter and  or that  the complaint and  therefore  this appeal would succeed on the basis of  that evidence by way of a document in the form of “a request  to investigate  an allegation that documents  allegedly  filed are  suspect”; and why the alleged investigations are being sought three months  after the decision of the Auctioneers Licensing Board to the effect that the applicant  should  have raised the issue of the filing  of Notice of Proclamation  with the court which issued warrants pursuant to the letter of  7th November  2014.

39. The other  decision of Wanje  V Saikwasimply lays  down the  principles  applicable for the grant of leave  to  adduce  additional  evidence  on appeal  and which, in my  view, the applicant  has failed to  demonstrate  that its application meets those   principles. Furthermore, the Court of Appeal  in the Wanje  V Saikwa case dismissed  an application for  adduction of new evidence on appeal  upon the applicant  failing  to establish  that he had  satisfied  the  principles  laid down  therein.  The court compared the material in the supporting affidavit with the evidence recorded and found that vast majority of the material in the former   was not new evidence.

40. In the instant case, the applicant claimed before the Auctioneers Licencing Board that the respondent must have committed perjury   by swearing a false affidavit, and the Board made a finding that the best person to determine that issue was the court where the documents were allegedly filed. It was upon the applicant to ensure that it had all the evidence required before proceeding with its complaint before the Board as there was no urgency in the matter.

41. The upshot of all the above is that I find no new and or needful evidence to authorize its adduction at this appellate stage.  I also find that the purported new evidence is not new and neither is it foolproof .  It is inconclusive and therefore allowing it would be a waste of precious judicial time.  I also find that  there is no miscarriage of  justice that  would be  occasioned  to the applicant  if the application is declined . Accordingly, I find the application dated 22nd February 2016 devoid of any merit and dismiss it with costs to the respondent.

Dated, signed and delivered at Nairobi this 31st day of May 2016.

………………..

R.E. ABURILI

JUDGE

In the presence of:

Mr Waweru h/b for Mr Khakula for the Respondent

N/A for the applicants

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