Ceneast Airlines Limited v Kenya Shell Limited
The bottom line
#Kenya's Court of Appeal refused to hear new evidence on appeal because the party could have found it earlier with a little effort.
What this practically means
#Executive summary
#Key legal issues
#Whether the additional evidence could have been obtained by reasonable diligence during the trial
The explanation that the letter was unknown to the applicant was rejected because Murichu had himself replied to the letter and the director said to be abroad was active in the company's affairs; with a little diligence the letter would have been available to the trial court.
Murichu had written a reply on 27th May 1994 referring to the letter in issue, so he could not credibly claim ignorance of its existence. Mondo, said to have been abroad for two years, was an active director who attended the VAT Appeals Tribunal in May 1998 and returned for the appeal hearing. The court therefore found the letter could have been produced with reasonable diligence.
Whether the additional evidence would have affected the result of the suit
The letter was merely confirmatory of matters already exhaustively placed before the trial court by affidavit and counsel's submissions, so it would not have affected the outcome.
The matters the letter was meant to confirm - the alleged wrongful charging of VAT and customs duty on exempted aviation fuel - had already been fully canvassed before the trial court through Murichu's affidavit and submissions. Evidence that merely confirms what is already before the court does not meet the second limb of the rule 29 test.
Whether the respondent was under an obligation to disclose the letter to the applicant
The respondent was under no obligation to provide evidence supporting the applicant's own case, so the allegation that the respondent withheld the letter did not arise.
The applicant contended the respondent withheld the letter from the superior court. 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 one's own evidence lies on the party asserting it.
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 awarded to the respondent
- On appeal from
- High Court of Kenya at Milimani Commercial Courts
- H.C.C.C No. 593 of 1998
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ceneast Airlines Limited v Kenya Shell Limited", Case Analysis (1999). Civil Appeal No. 174 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/156/eng@1999-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.