Dr. Vijay Kumar Saidha & anothers v Tribhuvan Gordhan Bakrania & 2 others [2012] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let the Saidhas adduce new evidence because they could have obtained it before trial and it would not have changed the result.
What this practically means
#Executive summary
#Key legal issues
#The principles governing admission of additional evidence on appeal under Rule 29(1)(b)
The power is discretionary and additional evidence may be admitted only where the applicant shows due diligence, that the evidence would have influenced the decision below, and that the evidence is apparently credible; a fourth criterion applies where the respondent fraudulently obstructed the adducing of the evidence.
The court restated the settled principles from Karmali Mohamed, Edgar Ogechi, Mzee Wanjie and Joginder Auto Services. It then tested the application against each criterion, finding the documents credible but failing on due diligence and on capacity to influence the trial outcome.
Whether the Appellants exercised due diligence
They did not. The practising certificate applications were on file at the Law Society of Kenya from the beginning of 1999, well before the 2005 hearing, and the Appellants gave no reason for not obtaining them then.
The court held that anyone seeking information about a practising advocate should first approach the Law Society of Kenya. Since the documents were readily available before trial and no explanation was offered for the failure to obtain them, the due-diligence criterion failed.
Whether the evidence would have influenced the trial decision
It would not. The 1998 application showed the third Respondent as a partner but the 1999 application showed him as an employee, while the trial judge found he resigned from the partnership with effect from 1st August 1998, before the alleged payment in September 1998 was relevant to his status.
The issue at trial was whether the third Respondent was a partner in September 1998. The trial judge found as a fact that he resigned with effect from 1st August 1998. The new documents, largely concerning 1999 status, could not displace that finding or alter the result.
Legal principles established
#- Leave to adduce additional evidence on appeal requires the applicant to show that despite due diligence the evidence could not be secured for the trial, that it would have influenced the decision below, and that it is apparently credible; these principles bind the High Court and subordinate tribunals when addressing such applications.
- The Law Society of Kenya is the first port of call for information on a practising advocate, so a party wishing to establish an advocate's status must seek such information before trial.
Court orders
#- 1.The Appellants' notice of motion dated 28th February 2011 seeking leave to take additional evidence is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 538 of 1999 (OS)
- Jurisdiction invoked
- Rules 29, 42 and 43 of the Court of Appeal Rules, in particular Rule 29(1)(b) empowering the court to take additional evidence on appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dr. Vijay Kumar Saidha & anothers v Tribhuvan Gordhan Bakrania & 2 others [2012] KECA 12 (KLR)", Case Analysis (2012). Civil Appeal (Application) No. 9 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/12/eng@2012-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.