Peninah Nandako Kiliswa v The Independent Elections and Boundaries Commission & 2 others
The bottom line
#Kenya's Court of Appeal refused to let an appellant introduce new evidence she could have used earlier, confirming judicial review appeals cannot use Rule 29.
What this practically means
#Executive summary
#Key legal issues
#Applicability of rule 29(1) of the Court of Appeal Rules to judicial review appeals
Rule 29(1) does not apply; judicial review is a supervisory, not original, jurisdiction, so the application premised on the rule is incompetent.
The court accepted counsel's submission that the High Court, in determining the judicial review application, was reviewing a decision already made by IEBC rather than hearing a matter first instance. Relying on Black's Law Dictionary definitions of original and appellate jurisdiction, it held the judicial review proceedings were akin to an appeal, so the High Court's decision was not made in its original jurisdiction and rule 29 was inapplicable.
Whether sufficient grounds existed to admit additional evidence on appeal
No; even if rule 29 applied, the appellant failed the established criteria for adduction of additional evidence.
The court restated the Tarmohamed v Lakhani and Ladd v Marshall principles and the two-limb test in Mzee Wanjie v Saikwa. The evidence sought was available at all material times; the appellant admitted annexing the wrong document through oversight, which was negligence amounting to no sufficient reason; she was bound by her pleadings and could have sought to adduce the evidence before the High Court delivered judgment but did not.
The concept of arresting judgment in Kenyan civil jurisprudence
Arrest of judgment is alien to Kenyan civil procedure; after delivery of judgment the court is functus officio.
The court, drawing on the Nigerian Supreme Court decision in Usikaro v Itsekiri Land Trustees and Musdapher JCA's lead judgment, explained that arresting judgment is a common-law device hardly known in modern civil practice in Kenya. Before judgment there is nothing to arrest; after judgment, the court is functus officio. A party's remedy must be sought timeously before judgment.
Legal principles established
#- Rule 29 of the Court of Appeal Rules governs adduction of additional evidence only where the appeal is from a decision of the High Court acting in its original jurisdiction; judicial review decisions are made in the High Court's supervisory or appellate jurisdiction and fall outside the rule.
- Additional evidence may be admitted on appeal only sparingly and with great caution: it must not have been obtainable with reasonable diligence at the trial, it would probably have an important influence on the result, and it must be apparently credible; an exception exists where the application is premised on fraud or surprise.
- Once judgment is delivered, the court is functus officio and there is no power to arrest or reopen the judgment; a party must seek appropriate relief before delivery of judgment.
Court orders
#- 1.Dismissal with costs of the appellant's notice of motion dated 14th October 2013 seeking leave to adduce additional evidence
- On appeal from
- High Court of Kenya at Nairobi
- J.R. No. 223 of 2013
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act; application made under rule 29(1) of the Court of Appeal Rules with reliance on Section 1(1) of the Appellate Jurisdiction Act for inherent power
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Philip Otieno Ongidi & 1 other v Benjamin Otieno Oduge & 5 others[2026] KECA 1077 (KLR)29 May 2026applied
- Jennifer Otieno v Developing Africa Limited & 1 other[2026] KECA 782 (KLR)24 Apr 2026applied
- Mecca & another (Suing on behalf of the Estate of Elizabeth Nasimiyu Nyongesa) v County Government of Trans Nzoia (Environment and Land Case E021 of 2023) [2025] KEELC 7352 (KLR)[2025] KEELC 7352 (KLR)29 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Peninah Nandako Kiliswa v The Independent Elections and Boundaries Commission & 2 others", Case Analysis (2014). Civil Appeal No. 201 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/807/eng@2014-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.