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Court of AppealDismissedCivil Appeal (Application) No. 50 of 2016

Wafula v Nielsen & another (Civil Application 50 of 2016) [2017] KECA 654 (KLR)

Court of Appeal of Kenya
10 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,551 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let an appellant add new evidence on appeal because it could have been presented at trial with reasonable diligence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Asike-Makhandia, Ouko and M'inoti, JJ.A) on an interlocutory motion by the appellant, Dorothy Nelima Wafula, seeking leave to adduce additional evidence on her appeal against the judgment of Mukunya, J. of 15 June 2015 in ELC Civil Case No. 237 of 2012. The underlying dispute concerns a ½ share of land parcel KWALE/Diani Beach Block/372, which the respondents claim was purchased from the applicant's late German husband, while the applicant asserts the registration of the respondents was a scheme to defeat a matrimonial claim. The trial judge found the re-transfer of the property to the deceased and the applicant irregular, cancelled their title and ordered restoration of the four-party ownership. Before the appeal was heard, the applicant moved under rule 29(1)(b) of the Court of Appeal Rules to introduce six items of new evidence, including affidavits of a District Commissioner, an Assistant Land Registrar and her father. The court restated the settled guidelines: the evidence must not have been obtainable with reasonable diligence at trial, must probably have had an important influence on the result, and must be credible; and the power must be exercised sparingly, never to patch up gaps or make out a fresh case on appeal. Although noting the applicant's case was prematurely closed at trial, the court held all the proposed evidence was available then and dismissed the application, with costs in the appeal itself. The main appeal remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to adduce additional evidence on appeal under rule 29(1)(b) of the Court of Appeal Rules

Key legal issues

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01

Whether the proposed additional evidence satisfied the rule 29(1)(b) threshold

Holding

The application failed because the evidence was available at trial; the procedure is reserved for genuinely unobtainable evidence, not for repairing a prematurely closed case

Reasoning

The court restated the guidelines from Mzee Wanje and related authorities: diligence, importance to the result, and credibility. Although the applicant's case was prematurely closed by the trial judge, most of the proposed items were from witnesses whose statements had never been filed or served, and all were available at trial. The rule cannot be used to patch up or fill gaps after hearing the opposite side's evidence. The court declined to comment further on the manner the trial judge exercised his discretion, leaving that for the appeal.

p. 4

Legal principles established

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  • Additional evidence on appeal under rule 29(1)(b) is admitted only where it could not with reasonable diligence have been obtained before and during the hearing, where it would probably have had an important influence on the result, and where it is credible; the power must be exercised sparingly and not to fill gaps or make out a fresh case on appeal
  • In deciding an application to adduce additional evidence, the bench must not deal with the merits of the appeal, as the appeal and the application are independent
  • A party who has obtained a judgment from a court of competent jurisdiction is not to be deprived of it or delayed from enjoying it without firm and strong grounds

Court orders

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  1. 1.The application for leave to adduce additional evidence is dismissed
  2. 2.Costs of the application to be in the appeal itself

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority
William Ouko
W. OukoJA
Currently serving
majority
KM
majority
On appeal from
High Court of Kenya
ELC. Civil Case No. 237 of 2012
Jurisdiction invoked
Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act, read with rule 29(1)(b) of the Court of Appeal Rules

Relief refused

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Leave to adduce additional evidence on appeal under rule 29(1)(b)

The evidence was available at trial with reasonable diligence and the application amounted to an attempt to patch up gaps in the applicant's case after her case was prematurely closed

p. 4

Costs

Costs of the application to be in the appeal itself.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

before the Court can permit additional evidence to be adduced under rule 29, it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible.
p. 3Guidelines for admission of additional evidence on appeal
In the result we dismiss the application and order that costs be in the appeal itself.
p. 4Final orders - disposition
It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.
p. 3Caution in exercising rule 29 discretion (quoting Mzee Wanje)

Issues in the judgment

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minor

The coram heading names the judges as MAKHANDIA, OUKO & M'INOTI, while the signature block reads ASIKE-MAKHANDIA; the same judge appears under two renderings

minor

The second respondent is named 'Paul Fredrick NELSON' in the title but described as 'Paul Fredrick Nielsen' in the body

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Wafula v Nielsen & another (Civil Application 50 of 2016) [2017] KECA 654 (KLR)", Case Analysis (2017). Civil Appeal (Application) No. 50 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/654/eng@2017-03-10

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