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Court of AppealDismissedCivil Appeal No 122 of 2017

Eri Limited v Equitorial Commercial Bank (Formerly Southern Credit Banking Corporation) Limited & another [2019] KECA 742 (KLR)

Court of Appeal of Kenya
21 May 2019
1,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Makhandia, Kiage and Otieno-Odek, JJ.A) on a notice of motion dated 13th December, 2017 by Eri Limited, the appellant, seeking leave under Rule 29(1)(b) of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act to adduce additional evidence on the hearing of its appeal. The substantive appeal challenges a ruling of Kaniaru, J. of the Environment and Land Court at Kisumu dated 8th September, 2016 striking out the appellant's suit over Kisumu/Municipality Block 12/265 as time-barred, res judicata and an abuse of court process. The proposed additional evidence was a letter dated 27th April, 2017 from the Land Registrar, Kisumu stating there was no record of transfer of the suit property to the 2nd respondent. Both respondents opposed, contending the information was neither new nor previously unobtainable and would prejudice them since the letter addressed validity of title, an issue not before the trial court. The court applied the principles in Mzee Wanje v A K Saikwa, adopting Ladd v Marshall: reasonable diligence, probable important influence on the result, and apparent credibility, coupled with the caution that the power must be exercised sparingly and not to patch up weak points in a losing party's case. Holding that the letter did not speak to whether the trial Judge properly exercised his discretion in striking out the suit, the court found it irrelevant and dismissed the application with costs to the respondents. The substantive appeal remains pending for determination on whether the trial court's discretion was properly exercised, applying the Mrao Ltd standard for interference with discretionary decisions.

Questions the Court framed

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

  1. 1.Whether the appellant's application under Rule 29(1)(b) to adduce additional evidence on appeal is deserving
  2. 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

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01

Whether the letter from the Land Registrar, Kisumu met the criteria for admission as additional evidence under Rule 29(1)(b)

Holding

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.

Reasoning

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.

p. 3
02

The applicable standard for interfering with a trial court's exercise of discretion on the substantive appeal

Holding

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).

Reasoning

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).

p. 3

Legal principles established

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  • 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

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  1. 1.The appellant's application by notice of motion dated 13th December, 2017 seeking leave to adduce additional evidence is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority
majority
majority
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

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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

p. 3

Costs

The application is dismissed with costs to the respondents.

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.

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.
p. 3Purpose and limits of Rule 29(1)(b) additional evidence
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. 3Sparing exercise of discretion to admit additional 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.
p. 3Relevance as a threshold criterion for additional evidence
The upshot then, is that the application lacks merit and is accordingly dismissed with costs to the respondents.
p. 3Final orders - dismissal of the application

Issues in the judgment

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minor

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.

minor

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

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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, "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.