Kibos Sugar & Allied Industries Limited & another v Benson Ambuti Adega & 5 others [2019] KECA 332 (KLR)
The bottom line
#Kenya's Court of Appeal allowed Kibos Sugar to introduce new government pollution reports as evidence, confirming public documents are presumed credible.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to adduce additional documentary evidence in the appeal under Rule 29(1) of the Court of Appeal Rules
- 2.Whether the proposed additional evidence is directly relevant to the appeal and would influence or impact the outcome
- 3.Whether the additional evidence could not have been obtained with reasonable diligence for use at the trial
- 4.Whether the proposed evidence is credible and capable of belief
Key legal issues
#Relevance of the proposed additional evidence to the appeal
The NEMA Inspection Report and the Kisumu County Assembly Motions and Committee Report deal with the alleged pollution of the three rivers, which is an issue raised in the Petition, and are therefore relevant to the appeal.
The Petition before the trial court alleged discharge of raw effluent into Rivers Nyamasaria, Kibos and Lie Lango. The documents sought to be adduced all speak to that pollution question. Since the pollution alleged is a continuous process, any visitation to the rivers or the applicants' premises to determine its existence is relevant. The documents were therefore found relevant and capable of prima facie impacting the outcome of the appeal.
Credibility of the proposed additional evidence
The NEMA Report is credible and believable; no doubt was cast on its authenticity, and documents from public institutions are prima facie credible.
Counsel for the 1st, 2nd, 3rd and 5th respondents did not cast doubt on the credibility and authenticity of the NEMA Report in oral submissions. Both NEMA and the Kisumu County Assembly are public institutions, and under Section 79(1)(a)(ii) and (iii) of the Evidence Act a document from a public institution is prima facie credible unless proven otherwise. The respondents' objections to the Assembly Motions as undated or unauthenticated did not overcome this presumption.
Due diligence and availability of the evidence at trial
The applicants could not reasonably have been aware of and procured the NEMA Report in the course of trial, since it is dated 18th April 2019, after the March 2019 directions, and was addressed to the Clerk of the National Assembly, not the applicants.
Although the applicants had not indicated when they received the documents, the court found that the NEMA Report post-dated the trial court's directions on filing submissions and was addressed to the Clerk of the National Assembly rather than to the applicants, so they could not reasonably have obtained it during trial. Similarly, the County Assembly Committee Report is dated July 2019, after the applicants' submissions were filed.
Whether the application seeks to make a fresh case or patch up weak points in the appeal
The respondents failed to demonstrate how the documents patch up weak points in the appeal or create a fresh case.
The respondents argued that the additional evidence would be used to make a fresh case in the appeal and fill omissions, contrary to the Mohamed Abdi Mahamud principles. The court held that the respondents did not demonstrate how the documents would patch up weak points or make out a fresh appeal, and therefore that objection failed.
Legal principles established
#- A document from a public institution is prima facie credible unless otherwise proven.
- The Court of Appeal's power to receive additional evidence under Rule 29(1)(b) is discretionary and must be exercised for sufficient reason and sparingly, on the governing principles laid down by the Supreme Court in Mohamed Abdi Mahamud.
Court orders
#- 1.Leave granted to the applicants to adduce as additional evidence: (i) a copy of the County Assembly of Kisumu's Motion for the Second Assembly; (ii) a copy of the County Assembly of Kisumu's Motion for the Third Assembly together with the Report of the Water, Environment and Natural Resources Committee on the Pollution of Rivers Kibos, Auji and Lie Lango; and (iii) a copy of the NEMA Inspection Report for Kibos Sugar and Allied Industries dated 18th April 2019
- 2.The additional evidence to be adduced by way of affidavit and filed as a Supplementary Record of Appeal, to be filed and served within five days of the date of the ruling
- 3.Applicants and all parties in support of the application to file and serve written submissions on the additional evidence within seven days; the 1st, 2nd and 3rd respondents to file and serve written submissions within seven days of service
- 4.Costs in the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment & Land Court at Kisumu
- ELC Petition No. 8 of 2018
- Jurisdiction invoked
- Rule 29(1) of the Court of Appeal Rules (in an appeal from a superior court acting in exercise of its original jurisdiction)
- Consolidated with
- Kisumu Civil Application No. 187 of 2019, Kisumu Civil Application No. 188 of 2019, Kisumu Civil Application No. 189 of 2019
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, persuaded by the merits of the dicta in the UK case of The National Guild of Removers & Storers Limited –v- Bee Moved Limited and Others (supra), we find that it is in the interest of justice to admit the additional documentary evidence.
For the various reasons stated above, the Notice of Motion dated 3 rd September 2019 has merit. We hereby grant leave to the applicants to adduce the following documents as additional evidence in the appeal:
We further make an order that the additional evidence be adduced by way of affidavit and the same be filed as a Supplementary Record of appeal.
The costs in this application to abide by the outcome of the appeal.
A documents from a public institution is prima facie credible unless otherwise proven.
It has been said time and again that the unfettered power of the Court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibos Sugar & Allied Industries Limited & another v Benson Ambuti Adega & 5 others [2019] KECA 332 (KLR)", Case Analysis (2019). Kisumu Civil Application No. 153 of 2019 (Consolidated with Kisumu Civil Applications Nos. 187, 188 and 189 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/332/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.