Mount Elgon Beach Properties Limited v Harrison Shikaru Mwanongo & another [2019] KECA 826 (KLR)
The bottom line
#The Court of Appeal refused to hear new evidence on appeal because the property owner could have gathered it during the original trial.
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 applicant should be granted leave to adduce additional documentary evidence (a surveyor's report and photographs) on appeal under Rule 29(1)(b) of the Court of Appeal Rules
- 2.Whether the court should in the alternative order a site visit and admit the resulting report as evidence
- 3.Whether the applicant could, with due diligence, have obtained the proposed evidence before the trial court concluded the case
Key legal issues
#The governing principles for admitting additional evidence on appeal
The discretion under Rule 29(1) is guided by the settled principles in Ladd v Marshall, as summarised by Chesoni, Ag. JA in Mzee Wanjie v Saikwa and expounded by the Supreme Court in Mohamed Abdi Mahamud, and must be exercised within those parameters even though the discretion is otherwise unfettered.
The court restated the three Ladd v Marshall limbs: the evidence could not be obtained with reasonable diligence for use at trial; it would probably have an important influence on the result though it need not be decisive; and it must be apparently credible though not incontrovertible. It noted the Supreme Court split these guidelines while maintaining their substance, and cautioned that additional evidence is allowed only sparingly, case by case, with abundant caution.
Whether the survey report and photographs met the due-diligence test
They did not. The applicant never explained why it could not have instructed a surveyor to produce the maps and photographs during the pendency of the suit before the ELC, so the application failed the very first test.
The information was not new; it was always available and the applicant simply needed to instruct a surveyor in good time. Counsel for the applicant conceded some of the evidence was available at trial. The court therefore concluded the applicant was seeking to patch up weaknesses in its case, which Rule 29(1) does not permit, and that the application was doomed at the threshold stage.
Relationship between Rule 29(1), section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules
Section 78(1)(d) and Order 42 Rule 27 do not derogate from Rule 29(1); the principles are the same, the only difference being that the statutory provisions also cater for the High Court sitting as an appellate court, while Rule 29 is confined to this Court.
The applicant had placed heavy reliance on the Civil Procedure Act and Rules, but the court held those provisions are in substance identical to Rule 29 and could not improve its position. The court also rebuked the invocation of Articles 159(2)(d) and 259 of the Constitution, holding that where clear Rules govern a specific situation, constitutional provisions should not be needlessly bandied about and the Court need not improvise.
Legal principles established
#- Leave to adduce additional evidence under Rule 29(1) is discretionary and governed by the Ladd v Marshall principles as restated by the Supreme Court: the evidence must not have been obtainable with reasonable diligence at trial, must be potentially influential on the result, and must be apparently credible; an unsuccessful party may not use it to fill lacunae or make a fresh case on appeal.
- Where clear Rules of the Court apply to a specific situation, constitutional provisions such as Articles 159(2)(d) and 259 should not be needlessly invoked to displace them.
- An issue that already forms a ground of appeal cannot be re-litigated through an application for additional evidence; doing so is an abuse of the process of the Court.
Court orders
#- 1.The Notice of Motion dated 31st October 2018 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondents in the main appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Malindi
- ELC Case No. 85 of 2015
- Jurisdiction invoked
- Rule 29(1) of the Court of Appeal Rules (application for leave to adduce additional evidence in a pending appeal)
Relief refused
#Leave to file additional documentary evidence (survey report and photographs)
The evidence could have been obtained with reasonable diligence before trial concluded, and the application is an attempt to patch up the applicant's case, contrary to the Rule 29(1) principles.
Alternative prayer for an order of a site visit
The refusal of a site visit by the ELC is already a ground of appeal and must be left to the court hearing the appeal.
Costs
Application dismissed with costs in the main appeal.
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.
It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
where there are clear unequivocal Rules applying to specific situations, then the provisions of the Constitution should not be needlessly invoked.
raising that issue in this application and in the appeal itself amounts to abuse of the process of the Court.
In all, we are not persuaded that the application meets the threshold circumscribed by the law as analysed elsewhere in this Ruling. In the circumstances we find this application lacking merit. We dismiss it with costs in the main appeal.
Issues in the judgment
#Internal inconsistency in the record: the coram states the court is sitting 'AT MALINDI' but the judgment states it was 'Dated and delivered at Mombasa', and the header says the ELC judgment was 'dated at Machakos' though delivered at Malindi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mount Elgon Beach Properties Limited v Harrison Shikaru Mwanongo & another [2019] KECA 826 (KLR)", Case Analysis (2019). Civil Appeal No. 102 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/826/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.