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Court of AppealDismissedCivil Appeal (Application) No. 325 of 2013· [2018] KECA 672 (KLR)

Kenya Anti-Corruption Commission v Willesden Investments Limited & 7 others [2018] KECA 672 (KLR)

Court of Appeal
20 April 2018
1,701 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 let a party add new documents on appeal, confirming appellate courts rarely accept fresh evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, Gatembu Kairu and M'inoti, JJ.A) on an application dated 24th August 2016 seeking leave under Rule 29 of the Court of Appeal Rules to introduce new documents as additional evidence in a pending appeal. The application was supported by an affidavit of Ben Muli and opposed by the Ethics and Anti-Corruption Commission's successor entity through Dedan O. Okwama. The substantive appeal challenges a ruling of the High Court (Muchelule, J) of 27th May 2010 in HCCC No. 35 of 2010, by which the Kenya Anti-Corruption Commission's suit seeking cancellation of title to L.R. No. 209/12748 was dismissed and/or struck out with costs as res judicata. The proposed additional evidence comprised reports from the National Lands Commission and a consent order in Civil Case No. 24 of 2008 said to settle ownership of the suit property. The court restated the governing principles from Mzee Wanje v A K Saikwa, adopting Ladd v Marshall: the evidence must not be obtainable with reasonable diligence at trial, would probably have an important influence on the result, and must be apparently credible; and the power must be exercised sparingly and with great caution, never to fill gaps or make out a fresh case on appeal. The court held the proposed material post-dated the impugned ruling and was irrelevant to the only question on appeal - whether the Judge properly exercised his discretion, per Mbogo v Shah. The application was dismissed with costs to the appellant.

Key legal issues

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01

Whether leave should be granted under Rule 29 to introduce new documents as additional evidence in the appeal

Holding

The application fails: the documents post-date the impugned ruling, are contested, and are irrelevant to the only question on appeal - whether the Judge properly exercised his discretion in striking out the suit.

Reasoning

The court recapitulated the Ladd v Marshall principles as adopted in Mzee Wanje v Saikwa and the caution that the rule is not for filling gaps or making out a fresh case. The proposed material - NLC correspondence and a consent order - arose after the 27th May 2010 ruling, and the substantive appeal concerns whether the High Court properly exercised discretion in striking out the suit as res judicata, per Mbogo v Shah. Material not 'needful' for that task cannot be admitted.

p. 4

Legal principles established

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  • The power to admit additional evidence on appeal under Rule 29 must be exercised very sparingly and with great caution; it is not a licence to patch up weak points or make out a fresh case on appeal.
  • The Ladd v Marshall principles (as adopted in Mzee Wanje v A K Saikwa) govern applications to adduce additional evidence on appeal: the evidence could not have been obtained with reasonable diligence, it would probably have an important influence on the result, and it must be apparently credible.
  • Additional evidence that came into existence after the decision appealed from, and which does not speak to the question before the appellate court, is inadmissible.

Court orders

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  1. 1.The application dated 24th August 2016 is dismissed
  2. 2.Costs of the application awarded to the appellant

Authorities

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Legislation

  • Court of Appeal RulesRule 29
  • Court of Appeal RulesRule 47

Cases cited (5)

  • Mzee Wanje and 93 others v A K Saikwa and others
    (1982-88) 1 KAR 462
  • Ladd v Marshall
    [1954] 1 WLR 1489
  • Joginder Auto Services Ltd v Mohammed Shaffique and another
    Civil Appeal (Application) No. Nai 210 of 2000 (2001) eKLR
  • Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd
    Civil Appeal No. 8 of 2003
  • Mbogo vs. Shah
    [1968] E. A 93
On appeal from
High Court of Kenya at Nairobi
Nairobi Civil Case No. 35 of 2010
Jurisdiction invoked
Rule 29 and 47 of the Court of Appeal Rules (appeal from superior court exercising original jurisdiction)

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, "Kenya Anti-Corruption Commission v Willesden Investments Limited & 7 others [2018] KECA 672 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 325 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/672/eng@2018-04-20

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