• The court noted that in 2002, the same court had ruled that the case was more of a thriller.
• The appellate court noted that the new evidence is not credible.
The Court of Appeal will not allow new evidence in an 18-year-old case in which a man is being fought by relatives over inheritance.
Simon Githinji and his cousin Charles Gitundu have disowned their nephew Charles Wanjohi, claiming that he was not the son of their late brother and should not inherit his estate. Court records do not show the value of the estate in contention.
The case was first filed at the High Court in Nyeri in 1997. In 2002, a judge ruled in favour of Wanjohi as the true biological son of the deceased, leading to the current appeal by the two.
Wanjohi was born in Nyeri and the documents his uncles seek to adduce are from the Registrar of Births in Nyeri.
This is the second time they have sought to show that Wanjohi was not related to their late brother. However, the court has for the second time declined to allow their application and dismissed it with costs.
Nairobi Court of Appeal judges Kathurima M’inoti, Agnes Murgor and Sankale ole Kantai ruled that the case had taken too long for various reasons. They noted that in 2002, the same court had ruled that the case was more of a thriller.
“The story behind this case is the stuff for novels. It is quite a thriller and at the same time it is a serious matter. Those connected with the story and have since died could be turning in their grave in anticipation of the outcome, and those living to a second coming so that the truth can declare itself,” the judgment reads.
The court further ruled that the evidence they were seeking to adduce fell far short of the threshold criteria necessary for the exercise.
“The passage of 20 years since the trial was completed is an inordinately long time to seek to introduce such documents, and this appeal has been pending since 2002.
"In the interest of justice for the parties and all concerned, our view is that it is exigent that the appeal be determined so that these matters of yesteryears can be finally laid to rest,” the court held.
The appellate court further noted that even though Githinji and Gitundu claim that they have new evidence to show that Wanjohi was not their brother’s biological son, the evidence is not credible.
“Already, there are doubts whether the birth certificate for ‘Wanjohi’ indicating December 26, 1965 as his date of birth belonged to the respondent, as, his brother, Peter Muriithi Chomba who was born on December 26, 1965, has claimed ownership of the impugned birth certificate."
The judges say this means that if the birth certificate belonged to Peter, then it could not at the same time belong to the respondent.
"If that is indeed the case, of what benefit would it be to the appeal to adduce evidence concerning Peter Muriithi Chomba?” the court asked.
The court further ruled that the evidence would not have any important influence in their appeal since it seeks to raise more questions than answers.
“And, given that the trial commenced in 2000 in the High Court, how possible would it be to test this evidence 20 years later, when many of the witnesses may not be alive today or cannot be traced?” the court ruled.
Edited by A.N