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Court of AppealPartially AllowedCivil Appeal 8 of 2003· [2013] KECA 285 (KLR)

Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd & 13 others [2013] KECA 285 (KLR)

Court of Appeal of Kenya
24 May 2013
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Ouko and Gatembu Kairu, JJA) on a notice of motion dated 6th June 2011 by the appellant, Kuwinda Rurinja Co. Ltd, seeking to take additional evidence on appeal under rules 29 and 42 of the Court of Appeal Rules. The appeal challenges a High Court ruling by Ole Keiwua J dated 5th December 1997 dismissing the appellant's application to review and set aside a consent order recorded on 2nd October 1996 in consolidated suits concerning the sale and transfer of L.R. Nos. 10262 and 11694; the appellant contended the consent was fraudulently entered into without its advocates' authority. The appellant sought to introduce the proceedings and judgment in Nairobi Chief Magistrates' Criminal Case No. 1193 of 1997 to elucidate the question of the advocates' authority. Applying the principles in Wanje v Saikwa, drawn from Ladd v Marshall, the court held all three prerequisites were met: the criminal proceedings concluded after the impugned ruling so could not have been obtained with reasonable diligence; they would probably have influenced the outcome on the question of authority; and they were credible. The court allowed prayer 2 of the application, deeming the criminal proceedings and judgment part of the record, and directed filing of a supplementary record within 14 days. Prayer 1, seeking to admit the conveying affidavit itself, was declined because the affidavit did more than convey the documents. Costs were made to abide the outcome of the appeal. The application was partially allowed.

Key legal issues

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01

Whether the first Ladd v Marshall prerequisite - reasonable diligence - was satisfied

Holding

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.

Reasoning

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.

p. 6
02

Whether the criminal case material would probably have an important influence on the result and is credible

Holding

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.

Reasoning

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.

p. 6
03

The limits on the scope of the admission - the affidavit itself was excluded

Holding

Only the criminal proceedings and judgment were admitted; the conveying affidavit was declined because it contained more than a mere conveyance of that material.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.Prayer 1 of the application, seeking that the affidavit of Joseph Mwangi Kiarie be part of the record, declined
  4. 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

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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, "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.