Stephen Boro Gitiha v Nicholas Ruthiru Gatoto & 2 others [2015] KECA 486 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#The principles governing admission of additional evidence on appeal under rule 29(1)(b)
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
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.
Whether the Deputy Registrar's report and the Official Receiver's affidavit satisfied the rule 29(1) threshold
Neither document met the threshold; the application was dismissed
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.
Legal principles established
#- 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
#- 1.The application for leave to introduce additional evidence by way of affidavit is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.