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Court of AppealDismissedCivil Appeal (Application) No 216 of 2014· [2015] KECA 486 (KLR)

Stephen Boro Gitiha v Nicholas Ruthiru Gatoto & 2 others [2015] KECA 486 (KLR)

Court of Appeal of Kenya
31 July 2015
1,372 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to accept new evidence on appeal because the appellant could not show the documents would have changed the case outcome.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Warsame, J. Mohammed and Ole Kantai, JJ.A) delivered on 31 July 2015 in Civil Appeal (Application) No 216 of 2014, an application by Stephen Boro Gitiha, the appellant in a pending appeal from Ogolla J's judgment in H.C.C.C No 4275 of 1994, for leave to introduce additional evidence in the form of two documents: a report by the Deputy Registrar of the High Court commissioned by Ochieng J in November 2014, and an affidavit sworn in February 2015 by Patrick Thoithi Kanyuira, the Official Receiver of the third respondent, Rural Urban Credit Finance. The dispute concerns the property L.R. No Kiganjo/Kiamwangi/208, sold to the applicant at a public auction by the third respondent after a charge dispute with the first respondent. The court restated the settled principles under rule 29(1)(b) of the Court of Appeal Rules, drawing on Karmali Tarmohamed v Lakhani, the Aga Khan Platinum Jubilee Hospital v Munyambu, Wanjie v Saikwa and Joginder Auto Service: the evidence must not have been obtainable with reasonable diligence at trial, must probably have an important influence on the result, and must be apparently credible though not incontrovertible. Applying those principles, the court found the Deputy Registrar's report inconclusive, based on contested facts and prepared for a High Court application later settled by consent, and the Official Receiver's affidavit repetitive of material already on record and capable of being given at trial. The application was dismissed with costs.

Key legal issues

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01

The principles governing admission of additional evidence on appeal under rule 29(1)(b)

Holding

The discretion to receive additional evidence is exercised on three principles: the evidence could not have been obtained with reasonable diligence for use at the trial; it would probably have an important (though not necessarily decisive) influence on the result; and it must be apparently credible though not incontrovertible

Reasoning

The court traced the settled jurisprudence from Karmali Tarmohamed v Lakhani through Munyambu, Wanjie v Saikwa and Joginder Auto Service, holding that although rule 29(1)(b) uses the general phrase 'sufficient reason', the three-fold test governs applications. Each of the two documents failed the test: neither could have influenced the appeal, both post-dated the judgment, and one was merely repetitive of material already on record.

p. 1
02

Whether the Deputy Registrar's report and the Official Receiver's affidavit satisfied the rule 29(1) threshold

Holding

Neither document met the threshold; the application was dismissed

Reasoning

The Deputy Registrar's report was inconclusive, based on contested facts, made over ten months after judgment, and prepared for a High Court application later settled by consent; the Court had already found who was in possession. The Official Receiver's affidavit was sworn after judgment, its deponent could always have testified, and its annexures were already part of the record. Admission would serve no useful purpose.

p. 3

Legal principles established

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  • An appellate court will not admit additional evidence unless the evidence could not, with reasonable diligence, have been obtained for use at the trial, it would probably have an important influence on the result of the appeal, and it is apparently credible though not necessarily incontrovertible

Court orders

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  1. 1.The application for leave to introduce additional evidence by way of affidavit is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(b)

Cases cited (4)

  • Karmali Tarmohamed & Anor. Vs. I.H.Lakhani
    [1958] EA 567
  • The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu
    [1985] KLR 127
  • Mzee Wanjie and 93 others v A.K. Saikwa
    [1982-88] 1 KAR 462
  • Joginder Auto Service Ltd v Mohammed Shaffique & Another
    [2001] eKLR (Civil Appeal (Application) No. Nai. 210 of 2000)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No 4275 of 1994
Jurisdiction invoked
Rule 29(1) of the Court of Appeal Rules - discretionary power to take additional evidence on appeal

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, "Stephen Boro Gitiha v Nicholas Ruthiru Gatoto & 2 others [2015] KECA 486 (KLR)", Case Analysis (2015). Civil Appeal (Application) No 216 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/486/eng@2015-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.