Julia Kaburia v Manene Kabeere & 6 Others [2007] KECA 61 (KLR)

IN THE COURT OF APPEAL AT NYERI

CIVIL APPEAL 340 OF 2002

JULIA KABURIA ……………………………………….. APPLICANT/APPELLANT

AND

MANENE KABEERE …………………………………………. 1ST RESPONDENT

OBED GUANTAI ………………………..………………….….. 2ND RESPONDENT

DISTRICT LAND ADJUDICATION &

SETTLEMENT OFFICER……………….…………………….. 3RD RESPONDENT

ATTORNEY GENERAL ………………..……………………... 4TH RESPONDENT

METHODISTCHURCH OF KENYA …….………………….. 5TH RESPONDENT

(Appeal from judgment and decree of the High Court of Kenya at Meru (Kasanga, J) dated 1st August, 2002

In

H.C. Cr. A No. 93 of 1998)

*******************

RULING

The applicant seeks leave under Rules 85 (2A) and 89(3) of the Court of Appeal Rules (Rules) to include in a supplementary record of appeal several documents namely, notice of motion dated 15th May, 2002, replying affidavit, grounds of opposition, ruling of Kasanga Mulwa, J and a decree given on 7th March, 2003.

The purpose of the application is to include in the supplementary record of appeal  the post judgment proceedings and order of the superior court relating to the correction of errors in the judgment of the superior court under appeal delivered on 1st August, 2002.

The applicant is the appellant in the pending  appeal in this Court.  The first respondent MANENE KABEERE died some time in 1999 (deceased).  The second respondent OBED GUANTAI is the son of the first respondent.

The history dispute is briefly as follows:-

Sometime in  1994 the deceased filed Civil suit No. 556 of 1994 in the Chief Magistrates Court at Meru - Manene Kabeere v. Julia Kaburia – 1st defendant, District Land Adjudication Settlement Officer Meru – 2n defendant and The Attorney General – 3rd defendant .  The basis of his claim was that after the Julia Kaburia  - his daughter in-law had filed  an objection, the second  defendant distributed the deceased’s five parcels of land, Nos. 760, 761, 906, 911 and 946 situated at  Mweru II Adjudication  section as pleaded in paragraph 6 of the plaint and in a manner which was against the deceased’s wishes as pleaded in paragraph 7 of the plaint.  The main reliefs sought in the plaint were,  a declaration  that the mode of subdivision of the land by the second defendant was unlawful; an order that the deceased  be allowed to sub-divide his pieces of land  according to his wishes as indicated in paragraph 7 of the plaint and rectification of the Register.  The  plaint was subsequently amended by  addition of paragraphs 7(a) which gave the particulars of paragraph  6 of the plaint  showing the new parcel numbers and the mode of alleged  unlawful  distribution.  In March 1995. Obed Guantai, the second respondent, made a formal application in the subordinate  court for orders that he be substituted for the plaintiff or alternatively that he should be added as a co-plaintiff on ground that the plaintiff who is his father was aged over 90 years and was persistently incoherent and confused.  The alternative prayer was allowed on 20th June, 1995 and the second respondent was joined as a co-plaintiff.  The suit was  ultimately dismissed by the subordinate court on 15th September, 1998.  The plaintiffs appealed to the superior court sometime in October, 1998 vide Civil Appeal No. 93 of 1998.  The first appellant  Manene Kabeere died before the  appeal was heard and by an application  dated 12th June, 2001 the second respondent sought for orders, inter alia, that, he be appointed a legal representative of his deceased father.  That application was allowed by the superior court on 8th October, 2001.

The superior court (Kasanga Mulwa, J) ultimately allowed the appeal on 1st August, 2002 in the following terms.”

“I therefore allow this appeal and set aside the trial court’s orders of 15th September, 1998 with the result that the 2nd apepllant sub-divides the respective parcels of land as per paragraph 7(a) of the amended plaint dated 4th October, 1994.  The 1st respondent shall bear costs of this appeal and those of the court.”

The Deputy Registrar  of the superior court issued a decree on 16th September, 2002 which decree apparently corresponds with the judgment of superior court. On 30th September, 2002, Julia Kaburia  filed the present appeal incorporating the decree issued on 16th  September, 2002 in the Record of Appeal.

By an application dated 15th August, 2002 Obed Guantai, the decree holder asked the superior court to correct two errors in the judgment under the Slip Rule.  The first error pointed out and corrected, is immaterial as it does not affect the decree.  The second error pointed out is the reference in the judgment to paragraph “7 (a)” instead of paragraph “7” in the concluding portion of the judgment of the superior court quoted above.  The superior court allowed the amendment the effect being that Obed Guantai was required to sub-divide the disputed parcels of land as per paragraph 7 of the amended plaint and not as per paragraph 7(a) of the plaint as earlier decreed.

The date of the Ruling of the superior court allowing the amendment is not indicated in the typed ruling but it is clear that a second decree “GIVEN” on 7th March, 2003 was issued.  The applicant intends to include in the supplementary record, the application for amendment, supporting affidavit, grounds of opposition, the ruling and the second decree.

The application is opposed by the Obed Guantai on the ground that documents sought to be added include pleadings and  a decree which are primary documents and which cannot be introduced by a supplementary  record. Mr. Ariithi, learned counsel for the second respondent, in particular contended, that, the notice of motion, supporting affidavit and grounds of opposition are pleadings which should have been included in the original record under Rule 85 (1); that the ruling of Mulwa, J is a primary document under rule 85 (1) (g) and lastly, that, the decree issued on 7th March, 2003 is  a primary document under rule 85 (1) (h).

I have already observed that the purpose of the application is to include in  the supplementary record of appeal the post judgment  proceedings and subsequent  ruling of the superior  court  relating to the  correction of errors in the judgment of the superior court.  The applicant has already lodged an appeal against the substantive judgment of the  superior court in its appellate jurisdiction  delivered on 1st August, 2002.  By Rule 85 (2) the appellant is  required to include in the record of appeal documents relating to the proceedings in  the trial court  corresponding as nearly as  may be to those set out in Rule 85 (1) and in addition, inter alia, the  memorandum of appeal, the  record of proceedings, the judgment  or order appealed from the decree or order  and the notice of appeal.  The appellant  has apparently complied with that  Rule 85(2).  Since  the appeal relates to the judgment of the superior court in  its appellate jurisdiction, as opposed to an appeal from its original jurisdiction,  it is with respect, erroneous to invoke Rule 85 (1) and equate the post judgment notice of motion for correction of errors in the judgment, the  accompanying  affidavit, the grounds of opposition, the replying affidavit as pleadings or even to equate the ruling of the superior  court allowing  the correction of errors to a decree.  Moreover, the appeal  already  filed is not against the  ruling or order allowing  the motion for the correction of errors under the Slip Rule.  I would therefore respectfully agree  with Mr. Kariuki, learned counsel for the applicant that the documents relating to the post judgment proceedings of the  superior court in  its appellate jurisdiction do not fall under the  ambit of Rule 85 unless  the decision therefrom is itself the subject matter of the appeal.

Nonetheless, the court  in  my view  has inherent jurisdiction to allow the documents to be included in a supplementary record of appeal if they are required for proper determination of the appeal.

I have no doubt that those proceedings, particularly, the amended decree which  ensued, although not indicated  as an amended decree, are necessary for the proper determination of the appeal. The second respondent Obed Guantai should have included them in a supplementary record under Rule 89 (1) but he failed to do so .  In the circumstances, I allow the application dated 5th March, 2005 and  filed on 6th May, 2005 with costs to the appellant  to be paid by  second respondent Obed Guantai.

The supplementary record filed on 6th May, 2005 is deemed as properly filed.

Dated and delivered at Nyeri this 16th  day of May, 2007.

E.M. GITHINJI

…………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR.