J.O v S.A.O [2015] KECA 225 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

CORAM: MARAGA, MUSINGA & GATEMBU, JJA.)

CIVIL APPEAL (APPLICATION) NO. 43 OF 2015

BETWEEN

J.O ……………………...…… APPLICANT/APPELLANT

AND

S.A.O ………………........................…….. RESPONDENT

(An application for adducing of fresh evidence obtained by the Applicant which did not form part of proceedings at the Lower Court)

in

H.C.C.A NO. 87 OF 2015

Formerly

KISUMU H.C.C.A. NO. 32 OF 2015)

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

RULING OF THE COURT

1.  This application by J.O, the applicant/appellant,   is brought under rule 29 of the Court of Appeal Rules.  The application seeks one order:

“That this Honourable Court be pleased to allow fresh evidence obtained by the applicant which originally did not form part of proceedings at the lower court.”

2. The application is premised on the grounds that the  evidence sought to be adduced was not available when the  matter that gave rise to this appeal was before the Children’s Court and the High Court, and that the evidence goes to the root of the Children’s welfare and would   therefore assist the court in arriving at a just conclusion.

3. The genesis of the appeal and the application now before   this Court is a dispute as to custody of two minor children,  J.B.O. and A.T.O. that is pitting their mother, S.A.O, the respondent herein and the Children’s   father the applicant/appellant.

4.  By consent recorded in the Principal Magistrate’s Court at    Rongo, Children’s Cause No. 2 of 2013, on 24^th February,  2015, custody of the said children was given to the    respondent.  The applicant was granted right of access to   the children during school holidays and two weekends every   month during school days, at day time only.  The applicant    was also enjoined to pay to the respondent a monthly   maintenance sum of Kshs.20,000/= before the 10^th day of   every month.

5. Inspite of that consent order, the applicant returned to the   Children’s Court on 10^th March, 2015 seeking orders of  custody and for various reasons sought to set aside the   orders.  The learned magistrate declined to set aside the  consent orders.  That ruling precipitated the appellants  appeal to the High Court.  Having commenced the appeal, the appellant sought before the High Court an order to stay execution of the orders issued by the Children’s Court. The High Court, (Majanja, J.) dismissed the appellant’s application and ordered him to return the children to the   respondent, having taken their custody contrary to the   consent order.

6.   Being aggrieved by that decision, the appellant moved to this  Court on appeal.  The appellant also filed an application under rule 5 (2) (b) of this Court’s rules seeking interim custody of the children and stay of the High Court ruling   requiring him to return the children to the respondent, although he had already done so in the meantime.  This  Court declined to grant the orders sought.  The appellant   now wants this Court to allow him to adduce further  evidence during the hearing of his appeal against the decision of Majanja, J.

7.         The evidence that is sought to be introduced is touching on:

1. alleged refusal to allow the appellant access to the children, necessitating an application to the High Court.

2. alleged harshness of one of the children’s teachers at [Particular Withheld] Academy which has adversely affected the children’s growth and development.

3. alleged irresponsibility in terms of the children’s moral upbringing, general care and hygiene.

8.  Mr. Amondi, the appellant’s learned counsel, made brief  submissions on his application and drew the court’s     attention to several authorities that he had filed.  We shall  advert to some of the authorities later.

9.   Mr. Kisera, the respondent’s learned counsel, opposed the application.  He filed grounds of opposition, stating that this   being a second appeal, rule 29 of the Court of Appeal Rules cannot be invoked in support of the application.  Mr.  Kisera further submitted that in a matter relating to   children’s custody, the trial court could be moved by any   party to the dispute if there was any change in     circumstances.

10. Rule 29 (1) states as follows:

“On any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power -

1.     To re-appraise the evidence and   to draw inferences of fact; and

2.     In its discretion, for sufficient  reason, to take additional  evidence or to direct that     additional evidence be taken by    the trial court or by a  Commissioner.”

11. There is no dispute that this is a second appeal.  It is not an appeal from the High Court’s original jurisdiction. Three   of the authorities cited to us by Mr. Amondi, that is,

JAMES GITAHI V SIMBA COLT MOTORS LTD  [2015], eKLR, JAMES MWANGI NGANGA V  KENYATTA UNIVERSITY COUNCIL & 4 OTHERS [2009] eKLR and ELIZABETH CHEPKOECH SALAT    V JOSEPHINE CHESANG CHEPKWONY SALAT [2014] eKLR, where similar applications were made under  rule 29, were all appeals from the High Court’s   original     jurisdiction.  However, the applications were all     declined.

12. In DANIEL KIPNGETICH SANG V REPUBLIC [2011] eKLR, the appellant had been convicted by Kericho Senior  Resident Magistrate for the offence of rape and sentenced to  life imprisonment.  His appeal to the High Court against  both conviction and sentence was dismissed.  The appellant   filed a second appeal to this Court and filed an application  under Article 159 (2) (d) of the Constitution, section   3A of the Appellate Jurisdiction Act and rule 290 of  the Court of Appeal Rules seeking to adduce a birth   certificate to show that he was born on 8^th October, 1988.  He wanted to demonstrate that he was aged 14 years when  he was sentenced to life imprisonment.  The application was   not opposed by the state and the court granted it.

13. Although the Court held that section 3A of the Appellate  Jurisdiction Act was irrelevant as it applies to Civil  Litigation and Article 159 (2) (d) of the Constitution was of no assistance because the application before it did not amount to procedural technicalities but to substantive matters of evidence.

14. It appears to us that the application, having been uncontested, the court’s attention was not drawn to the fact that the appeal before it was not from a superior court in  its original jurisdiction. We are satisfied that the wording of rule 29 is quite clear that it can only be invoked where an   applicant wishes to introduce fresh evidence in a first appeal but not otherwise. This Court has no jurisdiction to  consider the appellant’s application and must therefore   down its tools.

15. But even if it were not so, the appellant is not without a remedy.  In a matter involving custody of children, if indeed   there is a change in circumstances which may impact on the welfare of children, an appropriate application can be made   before the trial court, in this case the Children’s Court, to consider whether to   vary the orders regarding custody of  the children.
16. As this Court lacks jurisdiction to consider the application, it   is struck out.  Each party shall bear its own costs of the application.

DATED and delivered at Kisumu this 17^th day of November, 2015.

D. K. MARAGA

..…………..………..

JUDGE OF APPEAL

D. K. MUSINGA

……………..………..

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

……………..………..

JUDGE OF APPEAL

 I certify that this is a true copy of the original.

DEPUTY REGISTRAR