CENEAST AIRLINES LIMITED v KENYA SHELL LIMITED [1999] KECA 5 (KLR)
The bottom line
#Kenya's Court of Appeal refused to hear new evidence on appeal because the party could have found it earlier and it added nothing new.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the additional evidence (a letter dated 5th May 1994) could have been obtained by the exercise of reasonable diligence during the trial in the superior court
- 2.Whether the additional evidence, had it been made available to the trial court, would have been likely to have affected the result of the suit
Key legal issues
#Whether the letter of 5th May 1994 could have been obtained by reasonable diligence for use at the trial
The explanation of ignorance of the letter was false because Murichu had himself replied to the letter on 27th May 1994, and director Mondo was an active director present in the country; with a little diligence the letter would have been available at trial.
The court found Murichu's affidavit explanation untenable: he had written a reply on 27th May 1994 referring to the letter in issue, which necessarily meant he knew of its existence. Mondo, said to be abroad for two years, was shown to be an active director who attended the VAT Appeals Tribunal in May 1998 and returned for the appeal hearing. The court therefore concluded the letter could have been produced with minimal diligence.
Whether the letter, if produced, would have affected the result of the suit
It would not, because all matters contained in the letter had already been placed before the trial court by way of Murichu's affidavit sworn 25th February 1992 and counsel's submissions; the letter was merely confirmatory.
The court examined the substance of Murichu's affidavit and found that the matters the letter was meant to confirm - the alleged wrongful charging of VAT and customs duty and the reconciliation of accounts - were already exhaustively before the trial court. Evidence that merely confirms what is already before the court cannot be said to be likely to affect the result. Whether the Commissioner erred was a matter for the appeal itself, not this application.
Whether the respondent withheld the letter from the superior court
The allegation of withholding did not arise because the respondent was under no obligation to provide evidence supporting the applicant's own case.
The applicant contended the respondent withheld the letter during the hearing of the application to set aside the ex-parte judgment. The court rejected this, holding that a party has no duty to supply evidence that would support or prove the opposing party's case; the burden of gathering and tendering its own evidence lay on the applicant.
Legal principles established
#- Before the Court of Appeal permits the adduction of additional evidence, the applicant must show that the evidence could not have been obtained by reasonable diligence during the trial and that it would likely have affected the result of the suit.
Court orders
#- 1.The application under rule 29 of the Court of Appeal Rules to admit additional evidence on appeal is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani Commercial Courts
- H.C.C.C No. 593 of 1998
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules
Relief refused
#Admission of the letter dated 5th May 1994 as additional evidence on the appeal
The applicant failed to establish both conditions for admitting additional evidence: the letter could have been obtained with reasonable diligence at trial, and it would not have affected the outcome since its contents were already before the trial court
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
before this Court permits the adduction of additional evidence the applicant must show:1. that the additional evidence sought to be adduced on appeal could not have been obtained by reasonable diligence during the trial in the superior court; and 2. that such evidence, had it been made available to the trial court, would have been likely to have affected the result of the suit.
We are of the view that with just a little diligence, the letter in issue would have been made available to the trial court.
The respondent was under no obligation to provide evidence that would support or prove a case that the applicant had brought to court.
Consequently, both the conditions we have stated above have not been established by the applicant and application must of necessity fail. The same is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CENEAST AIRLINES LIMITED v KENYA SHELL LIMITED [1999] KECA 5 (KLR)", Case Analysis (1999). Civil Appeal 174 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/5/eng@1999-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.