James Mwangi Nganga v Kenyatta University Council & 4 others [2009] KECA 393 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let an appellant add late evidence or expand his appeal, confirming fresh evidence rules apply strictly.
What this practically means
#Executive summary
#Key legal issues
#Admission of additional evidence under rule 29
Prayer (1) was refused because the proposed evidence (the record of a withdrawn stay application) post-dated the decision appealed from and did not meet the Ladd v Marshall criteria.
Rule 29 admits additional evidence only on established principles: sufficient reason, inability to obtain the evidence with reasonable diligence for use at the trial, and likely influence on the result. Evidence arising after the superior court's ruling, concerning a stay application overtaken by events and withdrawn, cannot be additional evidence for the appeal. No prejudice results since the material can be adduced, if relevant, when the originating motion is heard in the superior court.
Scope of the Court of Appeal's jurisdiction under section 3 of the Appellate Jurisdiction Act
The Court rejected counsel's submission that section 3 empowers it to call up and determine a pending originating motion in the High Court; the amendments founded on that premise could not be allowed.
Section 64(1) of the Constitution and section 3(1) of Cap 9 confine the Court to hearing and determining appeals, with powers incidental thereto. Jurisdiction attaches only upon a notice of appeal; here the notice related solely to the ruling on the chamber summons. The originating motion was never heard below, so there is no decision on it to appeal from, and the Court cannot assume first-instance jurisdiction over it.
Amendment of grounds of appeal under rule 44
Although the Court is ordinarily liberal with amendments, the proposed amendments were refused as they were jurisdictionally flawed and would compound a memorandum of appeal that already offended rule 84 by being unduly argumentative and narrative.
Amendment is discretionary, but cannot be used to expand the appeal beyond the decision appealed from or to circumvent the Court's statutory jurisdiction. The existing grounds were adequate for argument, and the drafted amendments would worsen a memorandum that already offended rule 84.
Legal principles established
#- Additional evidence on appeal is admitted only where the evidence could not with reasonable diligence have been obtained for use at the trial, would probably have an important influence on the result, and is apparently credible; the power must be exercised sparingly.
- The Court of Appeal is a creature of statute and can only determine appeals from the High Court; its jurisdiction may be exercised only for purposes incidental to the hearing and determination of an appeal in which a notice of appeal has been filed.
- Fresh material relating to post-judgment events cannot be imported as additional evidence on appeal; it may be adduced, if relevant, before the superior court.
Court orders
#- 1.Prayer (1) for leave to introduce new documentary evidence declined
- 2.Prayer (3) for leave to amend grounds of appeal and prayers declined
- 3.The application dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 1724 of 1999
- Jurisdiction invoked
- Rules 29, 42 and 44 of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwangi Nganga v Kenyatta University Council & 4 others [2009] KECA 393 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 317 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/393/eng@2009-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.