Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd & 13 others [2013] KECA 285 (KLR)
The bottom line
#Kenya's Court of Appeal allowed new criminal case evidence into an old land appeal, but refused to admit the affidavit used to present it.
What this practically means
#Executive summary
#Key legal issues
#Whether the first Ladd v Marshall prerequisite - reasonable diligence - was satisfied
Yes. The criminal proceedings were conducted after the impugned High Court ruling was delivered, so the evidence could not have been obtained for use at the trial.
The High Court ruling under appeal was delivered on 5th December 1997, while the criminal proceedings ran between May 1997 and October 1999 with judgment on 3rd November 1999. Evidence generated after the impugned decision could not, by definition, have been obtained with reasonable diligence for use before the trial court, so the first prerequisite was met.
Whether the criminal case material would probably have an important influence on the result and is credible
Yes. The proceedings and judgment are relevant to the derivation of the authority of the advocates who entered the consent order, and their credibility cannot be doubted.
The central question in the review application below was whether Muthuri & Company Advocates had authority to enter the consent of 2nd October 1996. The criminal case material bears on that question of authority, so it would probably have influenced the impugned ruling; the court also found nothing to suggest the material lacked credibility.
The limits on the scope of the admission - the affidavit itself was excluded
Only the criminal proceedings and judgment were admitted; the conveying affidavit was declined because it contained more than a mere conveyance of that material.
The court limited the admission to the annexed criminal proceedings and judgment, deeming them part of the record. The affidavit of Joseph Mwangi Kiarie was refused because it did more than convey those documents, reflecting the caution against importing argumentative or fresh material disguised as additional evidence.
Legal principles established
#- An appellate court will admit additional evidence only where (a) the evidence could not have been obtained with reasonable diligence for use at the trial; (b) it would probably have an important influence on the result, though it need not be decisive; and (c) it is apparently credible, though it need not be incontrovertible.
- The power to admit additional evidence on appeal must be exercised very sparingly; it may not be used to patch up weaknesses, fill gaps or make out a fresh case on appeal.
Court orders
#- 1.Prayer 2 of the application dated 6th June 2011 allowed limited to the extent that the proceedings and judgment in Criminal Case No. 1193 of 1997 annexed to the affidavit of Joseph Mwangi Kiarie sworn on 6th June 2011 be deemed part of the record
- 2.The appellant to file and serve on the respondents, within 14 days from delivery of the ruling, a supplementary record consisting only of the proceedings and judgment in Criminal Case No. 1193 of 1997
- 3.Prayer 1 of the application, seeking that the affidavit of Joseph Mwangi Kiarie be part of the record, declined
- 4.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 5262 of 1988 (OS)
- Jurisdiction invoked
- Rules 29 and 42 of the Court of Appeal Rules (Appellate Jurisdiction Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd & 13 others [2013] KECA 285 (KLR)", Case Analysis (2013). Civil Appeal 8 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/285/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.