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Supreme CourtDismissedPetition 38 of 2019

Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others

Supreme Court of Kenya
4 August 2020
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
4,380 words in judgment
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AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Supreme Court dismissed bid to introduce late evidence because it was available earlier and applicant delayed.

What this practically means

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The Supreme Court of Kenya has the power to allow new evidence in an appeal, but this is only granted in rare cases where the evidence could not have been obtained earlier. In this case, the applicant asked to introduce documents he already had or could have gotten during the trial. He only tried to get them after losing in the Court of Appeal. The Court found he was simply trying to fix his case and dismissed the application with costs.

Executive summary

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The Supreme Court of Kenya dismissed an application by the Petitioner, S. K. Jirongo, seeking leave to adduce new and fresh evidence in an appeal concerning an incomplete sale transaction and related criminal charges. The application was brought under Articles 24, 48, 50, and 159(2)(d) of the Constitution, Sections 20 and 21 of the Supreme Court Act, and Rules 3 and 18 of the Supreme Court Rules. The Petitioner argued that the evidence, consisting of letters from the National Bank of Kenya and the Registrar of Companies, could not have been discovered earlier because his office file was stolen. The Court, in a unanimous judgment authored by Chief Justice D. K. Maraga, held that it had jurisdiction to hear the application under Rule 18 of the Supreme Court Rules and Section 21(3) of the Supreme Court Act. However, applying the principles from Mohamed Abdi Mahamad v. Ahmed Abdullahi Mohamed & 3 others (Wajir), the Court found that the Petitioner failed to demonstrate that the evidence could not have been obtained with reasonable diligence for use at trial. The Court noted that the Petitioner had knowledge of the documents, as evidenced by a bank letter stating that its review was based on vouchers provided by the Petitioner. The Court also observed that the Petitioner only wrote to the bank after the Court of Appeal judgment and that the bank responded promptly. The Court concluded that the Petitioner was indolent and was attempting to patch up his case after being unsuccessful at the Court of Appeal. The application was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to grant leave to the Petitioner to adduce additional evidence
  2. 2.Whether leave to admit additional evidence should be granted in this matter
  3. 3.What relief(s) are available to the Parties

Key legal issues

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01

Whether the Supreme Court has jurisdiction to grant leave to adduce additional evidence.

Holding

The Supreme Court has jurisdiction under Rule 18 of the Supreme Court Rules and Section 21(3) of the Supreme Court Act to grant leave to adduce additional evidence, but this discretion is exercised with restraint and not whimsically.

Reasoning

The Court noted that none of the parties contested its jurisdiction. It cited Rule 18 of the Supreme Court Rules, which empowers the Court to call for additional evidence, and Section 21(3) of the Supreme Court Act, which allows the Court to make any order necessary for determining the real question in controversy. The Court emphasized that the exercise of this jurisdiction is not automatic and must be based on the circumstances of each case.

02

Whether the Petitioner satisfied the principles for admission of additional evidence as set out in the Wajir case.

Holding

The Petitioner failed to satisfy the principles, particularly the requirement that the evidence could not have been obtained with reasonable diligence for use at trial, as the evidence was all along in his possession or could have been obtained earlier.

Reasoning

The Court found that the Petitioner had knowledge of the documents he sought to adduce, as evidenced by a letter from the bank stating that its review was based on vouchers provided by the Petitioner. The Court also noted that the Petitioner only wrote to the bank after the Court of Appeal judgment, and the bank responded promptly. The Court concluded that the Petitioner was indolent and was attempting to patch up his case after being unsuccessful at the Court of Appeal.

p. 10

Legal principles established

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  • The Supreme Court has jurisdiction to grant leave to adduce additional evidence under Rule 18 and Section 21(3).
  • Such discretion is exercised with restraint, not automatically, and depends on each case's circumstances.
  • Applicant must prove the evidence could not have been obtained with reasonable diligence for use at trial.
  • Applicant must show the evidence was not within his knowledge or could not have been produced earlier.
  • Failure to satisfy these principles leads to dismissal of the application for additional evidence.
  • Indolence or attempting to patch up a case after losing at the Court of Appeal is not a valid ground.

Court orders

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  1. 1.The Petitioner’s Application dated 19th December 2019 is hereby dismissed
  2. 2.Costs are awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Leave to adduce new and fresh evidence

The Petitioner failed to demonstrate that the evidence could not have been obtained with reasonable diligence for use at trial, and the evidence was all along in his possession.

p. 10

Costs

Costs are awarded to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Petitioner has not 'shown that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge, or could not have been produced at the time of the suit or petition.'
p. 10 Threshold for Additional Evidence
We can only surmise that the Petitioner was indolent, and in an application premised on discretion, his indolence is his waterloo.
p. 11 Diligence Requirement

Key timeline

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2019-12-19
Petitioner files application for leave to adduce additional evidence in the Supreme Court.
2020
Supreme Court dismisses application with costs, finding petitioner failed to meet required principles.

Practical implications

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For lawyers

Strict test for new evidence in Supreme Court

When advising clients on appeals, emphasize that the Supreme Court will not allow additional evidence unless it meets the three Wajir conditions. You must document early attempts to obtain evidence and show it was truly unavailable at trial. A client's claim that evidence was stolen will not excuse delay if they knew about it and did not act promptly.

For businesses

Document evidence promptly to avoid court rejection

Businesses involved in litigation should gather and preserve all relevant documents from the start. Relying on your lawyer to obtain evidence after a loss will likely fail. If you have correspondence or bank records, produce them during the trial. The court will not let you add them later just because you lost your file or only thought of them afterwards.

For individuals

Act quickly to avoid losing your chance to present evidence

If you are a party to a case, ensure you give your lawyer all documents before the trial ends. Do not wait until after losing to find 'new' evidence. The Supreme Court will dismiss such attempts unless you can prove you could not have gotten the evidence earlier with reasonable effort. Being slow or careless means you miss your chance.

Frequently asked questions

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Can I introduce new evidence in the Kenyan Supreme Court after losing my appeal?+

Yes, but only in limited circumstances. You must show the evidence could not have been obtained with reasonable diligence during the trial, was not within your knowledge, or could not have been produced earlier. The Court will not allow you to fix your case after losing.

What are the requirements for additional evidence in the Kenyan Supreme Court?+

The requirements come from the case Mohamed Abdi Mahamad v. Ahmed Abdullahi Mohamed. You must prove the evidence: (1) could not have been obtained with reasonable diligence for use at trial, (2) was not within your knowledge, or (3) could not have been produced at the time of the suit or petition. Failing any one leads to dismissal.

What happens if I lose my case and then find new evidence in Kenya?+

You can apply to the Supreme Court for leave to adduce that evidence. However, the Court will reject the application if the evidence existed earlier and you could have obtained it through reasonable effort. For example, if you had the documents all along or they came from a source you could have contacted during the trial.

How does the Kenyan Supreme Court handle applications for new evidence from indolent litigants?+

The Court dismisses them. In S. K. Jirongo v. National Bank of Kenya, the petitioner delayed obtaining letters from the bank until after losing at the Court of Appeal. The Court called his conduct 'indolent' and said he was trying to patch up his case. Such applications fail because the Court requires diligence.

Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others", Case Analysis (2020). Petition 38 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/38/eng@2020-08-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.