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Court of AppealDismissedCivil Appeal (substantive appeal from High Court at Mombasa; application notice of motion under rule 29(1))· [1984] KECA 58 (KLR)

Wanje v AK Saikwa (Civil Appeal 72 of 1982) [1984] KECA 58 (KLR)

Court of Appeal of Kenya
23 February 1984
AHA R W HancoxZCZ R ChesoniJNJ O Nyarangi
3,150 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let losing litigants add fresh evidence on appeal unless they meet strict, well-established conditions.

What this practically means

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Executive summary

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This was an eleventh-hour application under rule 29(1) of the Court of Appeal Rules, made as the appeal was called on, by newly instructed advocates for ninety-four appellants seeking leave to adduce additional evidence and a re-appraisal of the trial evidence to found a claim of adverse possession. The application arose from an appeal against a decision of Schofield Ag J (September 24, 1982) declaring the appellants not entitled to occupy the respondents' land at LR 384 (11) Mombasa mainland, ordering their eviction and awarding damages of Kshs 7,000. All three judges (Hancox, Chesoni and Nyarangi Ag JJA) agreed the application should fail. The court held that the Ladd v Marshall conditions apply under rule 29(1)(a): the evidence must not be obtainable with reasonable diligence at trial, must probably influence the result, and must be credible; both conditions must be established. Most of the affidavit material was already in evidence or contradictory of it, and the rule does not permit a party to make out a fresh case or patch gaps - the power must be exercised sparingly. The prayer for re-appraisal of the evidence was adjourned to the hearing of the appeal, as it could not meaningfully be undertaken before the respondents were heard. The appeal hearing was thereby delayed, to the prejudice of the parties. The dismissed part of the motion was awarded to the respondents in costs; Chesoni Ag JA would have dismissed the whole motion with costs. The court also noted that necessary exhibits were missing from the record contrary to rule 85(1)(f).

Key legal issues

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01

Conditions for admission of additional evidence on appeal under rule 29(1)

Holding

The applicant must show the evidence could not have been obtained with reasonable diligence for use at the trial and that it would probably have an important influence on the result, though it need not be decisive, and must be apparently credible; both conditions must be satisfied.

Reasoning

The court adopted the Ladd v Marshall principles, approved in Skone v Skone, as applicable under the Kenyan rule notwithstanding that rule 29(1) is less restrictive than RSC order 59 rule 10(2). Applying these tests, most of Mashaka's affidavit material was already in evidence, was available at trial, or was contradictory of the record, and none of it would have affected the outcome.

p. 2
02

Use of rule 29(1) to patch up a weak case

Holding

Additional evidence may not be admitted to enable an unsuccessful litigant to make out a fresh case on appeal, remove lacunae or fill gaps; the power must be exercised sparingly and with great caution.

Reasoning

Drawing on Mulla on the Code of Civil Procedure and the principles in Ladd v Marshall, the court held that the appellants were seeking a second bite at the cherry by importing fresh material to found a new adverse-possession case. Allowing such use would mean no end to litigation.

p. 4
03

Timing of re-appraisal of trial evidence

Holding

Re-appraisal of the evidence, including on adverse possession, cannot meaningfully be undertaken before the hearing of the appeal with the parties' full submissions; that part of the application was adjourned to the hearing of the appeal.

Reasoning

All three judges held it premature to re-appraise the evidence when the respondents had not been heard on that part of the application and the appeal itself had not been argued. The re-appraisal question should be argued at the hearing of the appeal, when the power under rule 29(1)(a) may be exercised.

Legal principles established

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  • An applicant under rule 29(1)(a) must establish both that the additional evidence could not have been obtained with reasonable diligence for use at the trial and that it would probably have an important influence on the result of the case.
  • The Ladd v Marshall principles govern the exercise of the discretion to receive further evidence on civil appeals in Kenya.
  • Rule 29(1) is not a device for a party to make out a fresh case or fill gaps in its evidence on appeal; the power must be exercised sparingly.
  • The rule does not entitle a party to bring in contradictory, as opposed to additional, evidence, which would effectively require a retrial of existing facts.

Court orders

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  1. 1.The first prayer in the notice of motion, to admit or direct the admission of additional evidence, is dismissed
  2. 2.The part of the motion seeking re-appraisal of the evidence is adjourned until the hearing of the appeal
  3. 3.The respondents are awarded the costs of the dismissed part of the application (Chesoni Ag JA would dismiss the whole motion with costs)
On appeal from
High Court of Kenya
Land dispute suit concerning LR 384 (11) Mombasa mainland
Jurisdiction invoked
Rule 29(1) of the Court of Appeal Rules (application to admit additional evidence on appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Wanje v AK Saikwa (Civil Appeal 72 of 1982) [1984] KECA 58 (KLR)", Case Analysis (1984). Civil Appeal (substantive appeal from High Court at Mombasa; application notice of motion under rule 29(1)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/58/eng@1984-02-23

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