Esther Njogu & another v Independent Electoral And Boundaries Commission [2013] KECA 43 (KLR)
The bottom line
#Kenya's Court of Appeal allowed new evidence—a pay slip proving a nominated politician held a salaried job—to be used in an election eligibility appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the additional evidence could not have been obtained with reasonable diligence for use at the trial
The Court was not convinced that the applicants demonstrated due diligence, since the pay slip had not been generated at the start of proceedings but other pay slips could have been sourced, yet the applicants offered no documentation of their efforts.
The Court noted that the May 2013 pay slip did not exist when High Court proceedings began, so it could not have been adduced at trial in that form. However, other similarly generated pay slips might have been sourced earlier, and counsel's claim of effort to obtain information was undocumented. The Court nonetheless found the evidence crucial and authentic, and excused the lack of diligence on that basis.
Whether the evidence would have an important influence on the result of the appeal
The Court found that the evidence proving the 8th interested party was drawing a salary from the TSC at the time of nomination goes to her eligibility for nomination and would impact the outcome of the appeal.
The eligibility of the 8th interested party as a TNA nominated representative to the Nyandarua County Assembly had been central in all forums adjudicating the dispute. Evidence tending to prove she was ineligible (that she was a salaried TSC employee at nomination) is crucial to the appeal's determination and disposal.
Whether the evidence is apparently credible
The Court found the pay slip authentic, since the 8th interested party did not disown it and nothing from the TSC suggested it was not generated by them.
The pay slip bears the 8th interested party's name, was issued by the TSC for May 2013, and neither she nor the TSC has called its authenticity into question. This satisfies the third Ladd v Marshall condition that the evidence be apparently credible, though not necessarily incontrovertible.
Legal principles established
#- An appellate court may, in its discretion and for sufficient reason, admit additional evidence on appeal from a superior court exercising original jurisdiction, where the evidence could not with reasonable diligence have been obtained at trial, would probably have an important influence on the result, and is apparently credible.
- The discretion to admit additional evidence is not unfettered; the applicant must demonstrate sufficient reason, which, while less stringent than 'special reason', must still be adequate and may require exceptional circumstances.
Court orders
#- 1.Leave granted to the appellants/applicants to adduce the annexed pay slip of May 2013 in the name of the 8th interested party as additional evidence
- 2.The additional evidence to be adduced by way of affidavit evidence deponed by the first appellant annexing it as an exhibit
- 3.The affidavit to be filed and served within seven (7) days of the date of the ruling
- 4.No order for cross-examination of the deponent since the authenticity of the pay slip has not been questioned
- 5.Costs of the application to be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 238 of 2013
- Jurisdiction invoked
- Rules 29, 42 and 43 of the Court of Appeal Rules (interlocutory application in a pending appeal from superior court exercising original jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Diana Kethi Kilonzo v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 353 (KLR)[2014] KECA 353 (KLR)3 Oct 2014
Cite this brief
#Cite this brief
Caselaw, "Esther Njogu & another v Independent Electoral And Boundaries Commission [2013] KECA 43 (KLR)", Case Analysis (2013). Civil Appeal No. 238 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/43/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.