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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 197 of 2014· [2019] KECA 94 (KLR)

Vipul Premchand Haria v Kilonzo and Co. Advocates

Court of Appeal
6 December 2019
2,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a litigant to present payment documents his lawyers earlier overlooked, showing honest mistakes can sometimes be fixed on appeal.

What this practically means

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Executive summary

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This interlocutory ruling of the Court of Appeal at Nairobi (Nambuye, Karanja and Makhandia, JJA) determines a Notice of Motion by the appellant, Vipul Premchand Haria, seeking leave to adduce additional documentary evidence in his appeal against a High Court decision (Ogola, J.) confirming a taxing officer's ruling that fees payable to the respondent firm of advocates, Kilonzo and Co. Advocates, were Kshs 5,700,000. The appellant sought to introduce correspondence, fee notes and statements of account to establish that he had paid the fees in full. The respondent opposed, arguing the documents dated 2005-2009 were available at taxation in 2012, were not produced, and that admitting them would enable the appellant to make a fresh case on appeal. The court restated the settled principles for admitting additional evidence on appeal, drawn from Chesoni, Ag JA's summary in Mzee Wanjie of the Ladd v Marshall criteria: due diligence, probable important influence on the result, and apparent credibility, reinforced by subsequent authorities and the Supreme Court's decision in Mohamed Abdi Mahamud. It emphasised that the power must be exercised sparingly and with caution, and that the application must be decided independently of the merits of the appeal. Applying these criteria, the court found the documents material to the central issue of whether the fee was paid, non-voluminous, non-prejudicial, and accepted the appellant's explanation of inadvertent omission. The application was allowed: leave was granted to adduce the documents (items a-r), to be filed by affidavit as a Supplementary Record of Appeal within 14 days, with costs of the application abiding the outcome of the appeal. The decision below was not disturbed at this stage.

Key legal issues

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01

The criteria for admitting additional evidence on appeal

Holding

The court restated the Mzee Wanjie/Ladd v Marshall criteria: due diligence, importance to the result, and apparent credibility, and applied them to the documents sought.

Reasoning

The court set out the oft-quoted summary by Chesoni, Ag JA in Mzee Wanjie, importing the Ladd v Marshall principles, plus later authorities including Joginder Auto Services, John Kiplangat Barbaret, Dick v Koinange and Karmali Tarmohamed, and the Supreme Court's decision in Mohamed Abdi Mahamud, before applying them to the application.

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02

Whether the specific documents sought should be admitted

Holding

Yes. The documents - correspondence, fee notes and statements of account - were found material to the just determination of the appeal on whether the appellant paid Kshs 5,700,000 in fees, non-voluminous, and non-prejudicial.

Reasoning

The court found the documents material to the central appeal issue (whether the fee of Kshs 5,700,000 was paid for the divorce and matrimonial property causes), noted they were not voluminous so no inconvenience would arise, accepted the appellant's explanation of inadvertent omission in the peculiar circumstances for the ends of justice, and found no prejudice to the respondent.

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Legal principles established

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  • The Court of Appeal exercises its discretion to admit additional evidence on appeal only sparingly and with caution, guided by the Ladd v Marshall principles as summarised in Mzee Wanjie & 93 Others v A. K. Saikwa & Others
  • An application for additional evidence at the appellate stage must be determined independently of the merits of the appeal; the bench seized of the application must not prejudge the appeal

Court orders

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  1. 1.Leave granted to the applicant to adduce and file additional evidence marked letter a-r in prayer 1 of the application
  2. 2.The additional evidence to be adduced by means of affidavit annexing the subject documents and filed as a Supplementary Record of Appeal within 14 days of the date of the ruling
  3. 3.Costs of the application to abide the outcome of the appeal
On appeal from
High Court of Kenya at Nairobi
Misc. Appl. No. 35 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the main appeal; the notice of motion is an interlocutory application within that appeal seeking leave to adduce additional evidence

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, "Vipul Premchand Haria v Kilonzo and Co. Advocates", Case Analysis (2019). Civil Appeal No. 197 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/94/eng@2019-12-06

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