Eri Limited v Equitorial Commercial Bank (Formerly Southern Credit Banking Corporation) Limited & another [2019] KECA 742 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a losing party add new evidence on appeal, confirming fresh evidence is admitted only sparingly and when truly relevant.
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 appellant's application under Rule 29(1)(b) to adduce additional evidence on appeal is deserving
- 2.Whether the High Court properly exercised its discretion in striking out the appellant's suit on the grounds of limitation, res judicata and abuse of court process (the substantive appeal)
Key legal issues
#Whether the letter from the Land Registrar, Kisumu met the criteria for admission as additional evidence under Rule 29(1)(b)
The application fails because the proposed evidence is not relevant to the issue in the substantive appeal. The appeal concerns whether the trial court properly exercised its discretion in striking out the suit as time-barred, res judicata and an abuse of process; the letter concerns the existence of transfer records and the validity of title, matters not before the trial court on that ruling.
The court restated the Wanje/Ladd v Marshall principles: diligence, importance to the result and credibility, plus the caution that the rule is not a device to patch weak points or fill gaps. Even assuming the letter were credible, it does not address whether the Judge properly exercised his discretion, so its introduction would not advance the appeal. The respondents also showed the information was neither new nor previously unavailable, and the appellant offered no adequate explanation for the delay in obtaining it.
The applicable standard for interfering with a trial court's exercise of discretion on the substantive appeal
A first appellate court will interfere with the exercise of the trial court's judicial discretion only where the trial court misdirected itself, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or its decision was plainly wrong (Mrao Ltd v First American Bank of Kenya Ltd).
The court identified the main question in the substantive appeal as whether the High Court properly exercised its discretion in striking out the suit on grounds of limitation, res judicata and abuse of process, and adopted the Mrao formulation of the grounds for appellate interference with discretionary decisions. This framed the relevance inquiry: evidence must speak to that discretion question to be admissible under Rule 29(1)(b).
Legal principles established
#- The principles in Ladd v Marshall, as adopted in Mzee Wanje v A K Saikwa, govern the exercise of the Court of Appeal's discretion under Rule 29(1)(b) to admit additional evidence: the evidence could not with reasonable diligence have been obtained for use at trial, it would probably have an important influence on the result, and it must be apparently credible; and the power must be exercised sparingly and with great caution.
- Additional evidence will not be admitted on appeal where it does not speak to the question arising in the appeal; evidence irrelevant to whether the trial court properly exercised its discretion in striking out a suit will be excluded.
Court orders
#- 1.The appellant's application by notice of motion dated 13th December, 2017 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisumu
- ELC Case No. 269 of 2017
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Leave to adduce additional evidence (a letter dated 27th April, 2017 from the Land Registrar, Kisumu) on the hearing of the appeal
The letter is not relevant to the inquiry in the appeal, which is whether the trial court properly exercised its discretion in striking out the suit; admitting it would not advance the appeal
Costs
The application is dismissed with costs to the respondents.
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.
This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal.
It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.
Thus the letter is not relevant to the appeal and its introduction will not in any way advance the appeal filed by the appellant.
The upshot then, is that the application lacks merit and is accordingly dismissed with costs to the respondents.
Issues in the judgment
#The cause number of the suit in the Environment and Land Court appears inconsistent: the coram records it as ELC Case No. 269 of 2017, yet the plaint is described as dated 20th July, 2010 and amended on 26th August, 2010, and the ruling struck out was dated 8th September, 2016 - predating a 2017 case number.
The coram heading refers to the decision below as a 'Judgment and decree', but the body of the ruling describes it as a Ruling striking out the suit; the two descriptions conflict.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eri Limited v Equitorial Commercial Bank (Formerly Southern Credit Banking Corporation) Limited & another [2019] KECA 742 (KLR)", Case Analysis (2019). Civil Appeal No 122 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/742/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.