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Court of AppealPartially AllowedCivil Appeal No. 195 of 2002· [2015] KECA 848 (KLR)

Walter Joe Mburu v Abdul Shakoor Sheikh & 3 others [2015] KECA 848 (KLR)

Court of Appeal
20 March 2015
WKW. KaranjaDMD.K. MusingaPKP.O. Kiage
2,137 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 refused to accept new evidence in a decade-old land case, warning that unexplained delay and weak material will sink such applications.

What this practically means

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Executive summary

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This is an interlocutory ruling of a three-judge bench of the Court of Appeal at Nairobi (Karanja, Musinga and Kiage JJ.A) on a notice of motion lodged on 17th August 2012, a decade after the appeal was filed, under rules 29, 30 and 31 of the Court of Appeal Rules. The applicant sought three prayers: rectification of the High Court decree of Ransley, J (which struck out his suit against the 3rd respondent, the National Social Security Fund, as time-barred) so that it conformed with that ruling; deemed proper filing of his notice of appeal; and leave to take additional evidence, namely letters from the Ethics and Anti-Corruption Commission concerning the transfer of the suit property, LR 209/324. The 3rd respondent opposed only the additional-evidence prayer, arguing the letters were not reports but preliminary, skeletal correspondence of no probative value in a purely private civil claim. The Court granted the uncontested prayers for rectification and deemed filing, but dismissed the additional-evidence application. It held that reception of additional evidence is discretionary; the ten-year unexplained delay militated against exercise of discretion; the letters were exploratory and tentative with nil probative value; and, the suit having been dismissed on a pure point of law (limitation) without evidence, an application to add evidence could not ordinarily lie. The application was dismissed with costs to the 3rd respondent, and the appeal was directed to be fixed for hearing on a priority basis.

Key legal issues

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01

Whether additional evidence should be received under rule 29(1)(b) of the Court of Appeal Rules

Holding

The application failed: the decade-long unexplained delay, the tentative and inconclusive nature of the EACC letters, and the fact that the suit was dismissed on a point of law without evidence all militated against reception of the material.

Reasoning

The Court restated the Aga Khan v Munyambu principles: leave will generally be given where the evidence could not with reasonable diligence have been obtained at trial, would probably have an important influence on the result, and is apparently credible. The letters here were 'mere letters', exploratory and of nil probative value, and unrelated to the limitation point on which the suit was struck out. Discretion was also exercised against the applicant for inordinate, unexplained delay.

p. 4
02

Whether a point-of-law dismissal forecloses an additional-evidence application

Holding

Yes, ordinarily: where a matter is decided on a point of law without any evidence tendered, there is no evidence to add to, so an application for additional evidence cannot ordinarily lie.

Reasoning

The Court agreed with the 3rd respondent that the suit against the 3rd respondent was struck out on limitation, a pure point of law, without evidence being taken. The only conceivable relevance would be evidence showing the claim was within time; the applicant instead sought to introduce totally different material unrelated to that point, which could not assist.

p. 4

Legal principles established

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  • Reception of additional evidence on appeal is discretionary and delay in bringing the application is a relevant consideration against granting leave.
  • Where a matter is decided on a point of law without any evidence having been tendered, an application for adduction of additional evidence cannot ordinarily lie.
  • Additional evidence must meet the rule 29(1)(b) threshold of being unobtainable with reasonable diligence, probably having an important influence on the result, and being apparently credible; tentative, inconclusive material does not qualify.

Court orders

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  1. 1.The registrar or deputy registrar directed to rectify the decree dated 4th March 2002 and issued on 22nd July 2002 to conform with the ruling of Ransley, J dated 14th March
  2. 2.The notice of appeal filed on the 19th March deemed to have been properly filed
  3. 3.The application for the taking of additional evidence dismissed with costs to the 3rd respondent
  4. 4.The very old appeal to be fixed for hearing as is on priority basis

Authorities

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Legislation

  • Court of Appeal Rulesrule 29(1)(b)
  • Court of Appeal Rulesrules 30 and 31

Cases cited (3)

  • THE ADMINISTRATOR HH AGA KHAN PLATINUM JUBILEE HOSPITAL Vs. MUNYAMBU
    [1985] KLR 127
  • WANJE Vs. SAIKWA
    [1984] KLR 275
  • JOGINDER AUTO SERVICES LTD Vs. SHAFFIQUE & ANOTHER
    [2001] KLR 97
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1191 of 1999
Jurisdiction invoked
Appellate jurisdiction under the Court of Appeal Rules (rules 29, 30 and 31 of the Rules of Court); the judgment does not cite a specific constitutional provision.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Walter Joe Mburu v Abdul Shakoor Sheikh & 3 others [2015] KECA 848 (KLR)", Case Analysis (2015). Civil Appeal No. 195 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/848/eng@2015-03-20

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