1.By a Notice of Motion application dated June 6, 2022 and filed herein on even date, the applicant, HArrison Nyariere Okello, through Nyauke & Company Advocates, is seeking the following orders;a)The honourable court be pleased to allow new documentary evidence to be adduced with regards to the matters before the court.b)Upon allowing new documentary evidence to be adduced, the honourable court be pleased to allow record filed by the appellant herein in Homa Bay Chief Magistrate’s Court citation cause No. E015 of 2021 especially the grant of letters of administration issued to the appellant in Mombasa High Court Succession Cause No. 274 of 2006 to be part of records for consideration by this court.c)The costs of this application be provided for in favour of the applicant/respondent.
2.The application is founded upon the applicant’s affidavit of ten paragraphs sworn on even date. It is further supported by documents namely a copy of summons for the revocation or annulment of grant in Succession Cause No. E105 of 2021 at Homa Bay Chief Magistrate’s Court, copy of affidavit in support of the said summons sworn by the appellant herein and dated December 2, 2021 and a copy of grant of letters of administration in Mombasa High Court Succession Cause No. 274 of 2006 issued on 18th August, 2006.
3.Briefly, the applicant laments that he filed a citation cause against the appellant herein before the subordinate court over the estate against which the instant appeal relates. That in response to the citation, the appellant brought to court a copy of the grant of letters of administration of her deceased husband’s estate together with a supporting affidavit. That one of the grounds of the instant appeal is that the appellant did not have locus standi to be sued in the primary suit as she was not the legal representative of the estate of the deceased. Thus, production of the aforementioned documents will demonstrate to the court that the issue of representation of the estate of the deceased has been settled.
4.On June 21, 2022, the court ordered and directed that the application be heard by way of written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules, 2010 and Practice Direction number 32 of the Environment and Land Court Practice Directions, 2014.
5.On the said date, the respondent sought indulgence of the court to file a Replying Affidavit and submissions in respect of the application. The court granted him twenty-one (21) days to file and serve the same. Be that as it may, the respondent failed to file both the replying affidavit and submissions herein.
6.Also, the applicant’s submissions, if any, were not filed in this application.
7.I have duly considered the application. So, are the orders sought in the application merited?
8.The applicable law as regards the admission of additional evidence by an appellate court is Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya which provides that: -
9.The rules of procedure that are hand maidens to Section 78 of the Civil Procedure above provide under Order 42 Rule 27 of the Civil Procedure Rules that:-
10.In the case of Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others  eKLR, the Supreme Court of Kenya established guidelines for admission of additional evidence before appellate courts in Kenya. The guidelines are as follows:
11.I am therefore, satisfied that the applicant has met the threshold as laid out in the legal provisions hereinabove and Mohamed Abdi Mahamud case (supra).
12.It is the considered view of this court that the application is meritorious. The applicant is entitled to the orders sought in the application.
13.The upshot is that prayers (a) and (b) sought in the application dated 6th June 2022 and filed on even date and as set out in paragraph 1 (a) and (b) hereinabove respectively, are hereby granted accordingly.
14.Costs of the application to abide the appeal herein.
15.It is so ordered.