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Court of AppealDismissedCivil Appeal (Application) No. 196 of 2009· [2011] KECA 9 (KLR)

John Wagura Ikiki Tabitha Wangui Ikiki Lucy Bancy Wanjiku Ikiki Esther Wanjiru Ikiki v Lee Gachuiga Muthoga

Court of Appeal of Kenya
2 December 2011
SBS.E.O. BosirePWP.N. WakiAVAlnashir Visram
2,921 words in judgment
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The bottom line

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The Court of Appeal refused to hear new evidence on appeal because the family could not explain why they hadn't presented it during the original succession trial.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Bosire, Waki and Visram, JJ.A) on a notice of motion by the appellants under rule 29(1)(b) of the Court of Appeal Rules, 2010 seeking to adduce additional evidence in their pending appeal against the judgment of Kasango J. of 22nd October 2008, which dismissed their objections and granted probate of a written Will of the late Onesmus Ikiki Waithanwa to the respondent, the named executor and an advocate. The applicants sought to introduce four items: a Umoja Service Station Ltd members' register showing the deceased 'attending' a 2005 meeting after his death; evidence of business partnership between the respondent, an attesting witness and a beneficiary; a doctor's report of 2nd August 2005; and two affidavits of the deceased's sisters. The court restated the governing principles: fresh evidence is admitted only on sufficient reason, where it could not with reasonable diligence have been obtained at trial, would probably importantly influence the result, and is apparently credible, with exceptional circumstances required. Testing each item, the court found the business association was known to the first applicant since 2000 and the register existed before trial without explanation of late discovery; the missing expert report would require a supplementary record of appeal, not additional evidence; and the doctor's report and affidavits predated the hearing with no explanation for non-production. The application was dismissed, with costs abiding the result of the main appeal, which remains unheard; a prayer for a rehearing was left to the appellate court.

Key legal issues

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01

Requirements for admission of additional evidence on appeal under rule 29(1)(b)

Holding

The applicant must demonstrate sufficient reason; the evidence must have been unavailable at trial despite reasonable diligence, probably have an important influence on the result, and be apparently credible.

Reasoning

The court adopted the Tarmohamed and Munyambu principles: leave is generally given where the evidence could not with reasonable diligence have been obtained for trial, would probably influence the result of the appeal, and is apparently credible though not incontrovertible. 'Sufficient reason' is less stringent than 'special reason' but adequate reason must still be shown. The discretion is judicial, not based on whim or caprice.

p. 4
02

Whether the four pieces of intended additional evidence met those requirements

Holding

None did. The business shareholding register was in existence before trial and was a known matter; the document examiner's report belonged in a supplementary record of appeal; the doctor's report and the two affidavits all predated the hearing with no explanation for non-production.

Reasoning

The 1st applicant had known of the respondent's business association with the deceased since 2000, and the register existed from 2005, yet the applicants did not disclose when or how it was discovered. The allegedly missing expert report would be cured by a supplementary record, not additional evidence. The doctor's report and sisters' affidavits predated trial and were not mentioned or exhibited with due explanation.

p. 5

Legal principles established

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  • An appellate court will not admit fresh evidence unless it was not available at trial or could not with reasonable diligence have been made available, save for grounds of fraud or surprise
  • The discretion under rule 29(1)(b) requires sufficient reason, and exceptional circumstances must be shown to receive fresh evidence on appeal

Court orders

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  1. 1.The application to adduce additional evidence was dismissed
  2. 2.Costs of the application to abide the result of the main appeal
On appeal from
High Court of Kenya at Nyeri
H.C. Succ. Cause No. 194 of 2000
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Wagura Ikiki Tabitha Wangui Ikiki Lucy Bancy Wanjiku Ikiki Esther Wanjiru Ikiki v Lee Gachuiga Muthoga", Case Analysis (2011). Civil Appeal (Application) No. 196 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/9/eng@2011-12-02

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