Githinji Ngure & another v Charles Wanjohi Wathuku [2010] KECA 15 (KLR)
The bottom line
#The Court of Appeal refused a late DNA test in an inheritance dispute because the applicants waited 14 years instead of acting when the evidence was available.
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 Court should exercise its discretion under rule 29(b) to admit additional evidence by way of a DNA test in the pending appeal
- 2.Whether the applicants exercised due diligence to obtain the DNA evidence at the trial and superior court levels
- 3.Whether the proposed DNA test, now limited to two persons instead of the five originally ordered, would still be useful and efficacious
Key legal issues
#Scope of the discretion under rule 29(b) of the Court of Appeal Rules to admit additional evidence
The discretion is wide and may serve the ends of justice, but is to be exercised only in deserving cases, guided by the Tarmohamed v Lakhani test of availability and due diligence, the proportionality test and the overriding objective
The Court adopted the East African Court of Appeal test that fresh evidence will not be admitted unless unavailable at trial despite reasonable diligence. The applicants had opportunities in both the Chief Magistrate's Court and the High Court to obtain the DNA evidence but failed for over 14 years. The delay reduced the test's success rate and narrowed its scope, undermining its usefulness and potentially prejudicing the parties, so the discretion was not triggered.
Effect of delay and diminished efficacy of the proposed DNA test
The lengthy unexplained delay affected both the quality and utility of the proposed test, which had been narrowed from five persons to two, and weighed decisively against admission of the evidence
In 1996, when the consent order for DNA testing was made, success rates approached 100% and the deceased's blood could have been tested. The current proposal excluded the respondent's mother and the deceased, and the success rate had diminished considerably. The US laboratory brochure showed DNA testing ordinarily compares the child's material with the mother's, casting doubt on the usefulness of the proposed two-person test.
Legal principles established
#- An appellate court will not admit fresh evidence unless it was not available at trial or reasonable diligence would not have made it available, save on grounds of fraud or surprise
- The discretionary power under rule 29(b) of the Court of Appeal Rules to take additional evidence should only be invoked in deserving cases, applying the proportionality test and the overriding objective
Court orders
#- 1.The application for leave to take additional evidence (DNA test) is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C.S.C. No. 60 of 1997
- Jurisdiction invoked
- Rules 29(b), 42(1)(2) and 43 of the Court of Appeal Rules (application for leave to take additional evidence in a pending appeal)
Relief refused
#Leave to take additional evidence by way of a DNA test to prove the paternity of the respondent
The applicants failed to exercise due diligence; evidence was available at trial and superior court levels but was not pursued for over 14 years, and the lengthy delay diminished the test's efficacy and could prejudice the parties
Order for exhumation of the body of the deceased Wathuku Ngure for DNA sampling
Fell with the dismissal of the main application; the Biotech Forensic letter suggested exhumation was unnecessary, but the applicants failed to meet the threshold for admission of additional evidence
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.
except on grounds of fraud or surprise the general rule is that an appellate court will not admit fresh evidence unless it was not available to the party seeking to use it at the trial, or that reasonable diligence would not have made it available
The discretionary power given to the Court should only be invoked in deserving cases.
In the circumstances and by applying the proportionality test and taking into account the overriding objective we are of the view that it would not be just to the parties to allow the application. The application is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The heading describes the matter as an application in Civil Appeal No. 259 of 2002, but the body states the applicants' pending appeal is Civil Appeal No. 254 of 2002, leaving the correct appeal number uncertain
The application is dated 23rd November, 2007 in the opening paragraph but is later described as 'this application dated 2nd November 2007' at the hearing
The second applicant's supporting affidavit is described as sworn on 17th March, 2009 while counsel relied on a letter dated 3rd March, 2009, and the application itself was filed in 2007, raising a chronology inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji Ngure & another v Charles Wanjohi Wathuku [2010] KECA 15 (KLR)", Case Analysis (2010). Civil Appeal (Application) No. 259 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/15/eng@2010-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.