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Court of AppealAllowedCivil Appeal (Application) No. NAI. 210 of 2000

Joginder Auto Service Ltd v Mohammed Shaffique & another [2001] KECA 296 (KLR)

Court of Appeal of Kenya
11 May 2001
1,770 words in judgment
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The bottom line

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Kenya's Court of Appeal let a garage introduce new price documents on appeal because the car's owners hid the vehicle's true purchase price at trial.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kwach, Bosire and O'Kubasu, JJ.A.) decides a notice of motion by Joginder Auto Service Ltd, appellant in Civil Appeal No. 210 of 2000, seeking leave under Rule 29(1)(b) of the Court of Appeal Rules to adduce additional evidence in its appeal against the judgment of Keiwua, J. delivered on 28 May 1999 in H.C.C.C. No. 1126 of 1995, in which the appellant, a garage, was held liable for the loss of a Mercedes car valued at about Kshs 3.3 million while in its custody for repairs. The proposed evidence comprised documents showing the price actually paid for the car in England, freight, clearing charges, duty and its insured value on arrival - material going to the contested issue of the car's value at the time of loss. The court restated the settled three-pronged test: the evidence could not with reasonable diligence have been obtained for the trial; it would probably have an important, though not necessarily decisive, influence on the result; and it must be apparently credible, though not incontrovertible. Applying Mzee Wanjie v Saikwa, Karmali Mohamed v Z H Lakhani and Brown v Dean, the court found that the respondents knew the purchase price - Saroya having cleared the vehicle at the port - and were obliged by section 112 of the Evidence Act to disclose it; their denial was a deliberate withholding of vital evidence to gain material advantage. Reasonable diligence depends on the facts of each case, and a party who takes advantage of another should not be allowed to take the full benefit of his wrong. The application was allowed, the motion record was ordered to form part of the record of appeal, and the respondents were to bear the appellant's costs of the application in any event.

Questions the Court framed

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

  1. 1.What constitutes 'sufficient reason' for the reception of additional evidence on appeal under Rule 29(1)(b) of the Court of Appeal Rules?
  2. 2.Whether the documents evidencing the purchase price of the suit car, freight, clearing charges, duty and insured value could not, with reasonable diligence, have been obtained for use at the trial.
  3. 3.Whether the additional evidence, if adduced, would probably have an important influence on the result of the appeal and is apparently credible.
  4. 4.Whether the respondents withheld vital evidence within their exclusive knowledge and whether that disentitles them to resist the application.
  5. 5.Who should bear the costs of the application.

Key legal issues

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01

What constitutes 'sufficient reason' for admitting additional evidence on appeal under Rule 29(1)(b) of the Court of Appeal Rules?

Holding

The rule does not define 'sufficient reason'; the discretion to receive further evidence is governed by three broad principles: the evidence could not have been obtained with reasonable diligence for use at the trial; it would probably have an important influence on the result although it need not be decisive; and it must be apparently credible although it need not be incontrovertible. These are general, not exhaustive, principles.

Reasoning

Rule 29(1)(b) uses the general phrase 'sufficient reason' without defining it. The court therefore drew on its own precedents and those of other common law jurisdictions - Mzee Wanjie v Saikwa (applied in Edgar Ogechi v University of Eastern Africa, Baraton) and Karmali Mohamed v Z H Lakhani - to distil three guiding principles, while stressing that they are general and not the only ones because the rule employs a general phrase.

p. 1
02

Did the documentary evidence of the car's purchase price, freight, clearing charges, duty and insured value satisfy the test for additional evidence?

Holding

Yes. The value of the car was a contested trial issue on which the trial judge relied on a general valuation; the purchase price and declared value were facts within the respondents' exclusive knowledge and were vital. Their denial of knowledge was a deliberate withholding of vital evidence, so the appellant could not with reasonable diligence have obtained the documents, which are apparently credible and would probably influence the result.

Reasoning

The value of the stolen Mercedes was a live trial issue and the trial judge relied on a general valuation by PW3. The price paid at James Green Motors and the value declared at the port were within the respondents' exclusive knowledge; Saroya cleared the vehicle and must have known the price, yet denied knowledge. Because the respondents suppressed the material, the appellant could not with reasonable diligence have obtained it, and the documents would probably have an important influence on the appeal.

p. 3
03

Could the respondents resist the application on the ground that the appellant should have used discovery and interrogatories, they having no duty to volunteer the price?

Holding

No. The respondents' withholding of the price was not bona fide; they knew it could have influenced the trial judge to award less. A party who takes advantage of another should not be allowed to take the full benefit of his wrong, and surprise or fraud are grounds upon which further evidence may be admitted.

Reasoning

Counsel for the respondents argued they were obliged only to make available evidence sufficient to establish their case, and that the appellant should have used discovery and interrogatories. The court rejected this: the price was a fact within the respondents' knowledge which section 112 of the Evidence Act obliged them to disclose, and withholding it to gain material advantage engages the fraud principle recognised in Brown v Dean as justifying the admission of further evidence.

p. 3

Legal principles established

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  • On an application to adduce additional evidence on appeal under Rule 29(1)(b), the discretion is exercised on three broad principles: the evidence could not have been obtained with reasonable diligence for use at the trial; it would probably have an important influence on the result although it need not be decisive; and it must be apparently credible although it need not be incontrovertible.
  • What amounts to reasonable diligence is fact-specific; the court is exercising discretionary jurisdiction.
  • A party who withholds evidence within its exclusive knowledge in order to gain a material advantage cannot resist the admission of that evidence on appeal; a wrongdoer should not be allowed to take the full benefit of his wrong.
  • Facts specially within a party's knowledge must be disclosed to the court; failure to disclose permits an inference that the party withheld them to gain material advantage.

Court orders

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  1. 1.The application is allowed and the appellant is permitted to adduce the additional evidence in the appeal.
  2. 2.The record of the notice of motion before the Court shall form part of the appellant's record of appeal in Civil Appeal No. 210 of 2000.
  3. 3.The respondents shall bear the appellant's costs of the present application in any event.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1126 of 1995
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules - power on an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, for sufficient reason, to take additional evidence or direct that additional evidence be taken

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.

(1)The applicant must show that the evidence sought to be adduced could not have been obtained with reasonable diligence for use at the trial. (2)The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and (3)The evidence must be apparently credible, although it need not be incontrovertible.
p. 2Three-pronged test for admission of additional evidence on appeal
His denial before the trial Judge that he knew the price was clearly a deliberate act of withholding vital evidence from the court.
p. 3Deliberate suppression of vital evidence by a party
They were obliged by dint of the provisions of section 112 of the Evidence Act to disclose it to the court. Having not done so it can be inferred that they withheld it in order to gain material advantage.
p. 3Duty to disclose facts specially within a party's knowledge
what is reasonable depends on the facts and circumstances of each case as the Court, in cases of this nature, is exercising discretionary jurisdiction.
p. 3Reasonable diligence is fact-specific; discretionary jurisdiction
a party who has been shown to have acted in such a way as to take advantage over another should as far as possible not be allowed to take the full benefit of his wrong.
p. 3Wrongdoer must not profit from suppression of evidence
What is important about the decision is that surprise or fraud are grounds upon which further evidence may be admitted.
p. 3Surprise or fraud as grounds for further evidence
In the result, and for the reasons we have given, we allow the application and permit the appellant to adduce the additional evidence in this appeal.
p. 3Disposition - leave to adduce additional evidence granted
The respondents shall bear the appellant's costs of the present application in any event.
p. 3Costs of the application

Issues in the judgment

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minor

The source text contains an embedded watermark URL and page number interrupting a sentence in the passage discussing Brown v Dean, which corrupts the verbatim text at that point.

minor

The first respondent's given name is spelled inconsistently within the judgment - 'MOHAMMED SHAFFIQUE' in the caption but 'Mohamed Shaffique' in the body of the ruling.

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, "Joginder Auto Service Ltd v Mohammed Shaffique & another [2001] KECA 296 (KLR)", Case Analysis (2001). Civil Appeal (Application) No. NAI. 210 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/296/eng@2001-05-11

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