Attorney General v Torino Enterprises Limited [2019] KECA 934 (KLR)
The bottom line
#Kenya's Court of Appeal let the Attorney General add six extra documents to a land dispute appeal, confirming courts admit new appeal evidence sparingly and only for good reason.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If there is additional new evidence
- 2.If that evidence could have been obtained by the applicant after reasonable diligence before and during hearing
- 3.If there is a probability the additional evidence would have an important influence on the result of the case
- 4.Based on the foregoing, is there sufficient reason to admit the additional evidence
Key legal issues
#Whether the applicant satisfied the criteria for admission of additional evidence on appeal
The application substantially complied with the Supreme Court's Mohamed Abdi Mahamud guidelines and leave was granted limited to six specified documents
The court evaluated each item of evidence against the Mohamed Abdi Mahamud guidelines, which it held are not necessarily conjunctive but require substantial compliance. It found the survey plan and correspondence between the Department of Defence and the Commissioner of Lands relevant and needful, likely to influence the pending appeal, not voluminous, credible as official public documents whose authenticity was unchallenged, and not aimed at filling gaps in evidence. The Registrar of Companies letter was abandoned by the applicant.
Whether the applicant's explanation for not tendering the documents at trial excused the failure of due diligence
The explanation that documents were with the Department of Defence and not available to the Attorney General was reluctantly accepted, tempered by the absence of prejudice to the respondent
The court held that an applicant's explanation that documents were held by a government department, though plausible, cannot at all times excuse late adduction of evidence at the appellate stage. It accepted the explanation reluctantly, noting the respondent itself characterised the documents as unhelpful and would suffer no prejudice, since it was not seeing the documents for the first time.
The guiding principles on admission of additional evidence in appellate courts in Kenya
Additional evidence may be admitted in exceptional circumstances on a case-by-case basis where it is relevant, credible, would influence the result, could not have been obtained with reasonable diligence, and is not meant to patch up weak points in a case
The court adopted the Supreme Court's guidelines in Mohamed Abdi Mahamud, including the longstanding rule from Mzee Wanje v A.K. Saikwa that Rule 29 is not a device for an unsuccessful litigant to import fresh evidence or fill gaps, and that the power must be exercised sparingly. The guidelines are not necessarily conjunctive; an applicant must substantially comply with them. The impact of the evidence on the result is assessed on merit together with all the evidence on record.
Legal principles established
#- Under Rule 29(1)(b) of the Court of Appeal Rules, additional evidence may be admitted on appeal only for sufficient reason, guided by the Mohamed Abdi Mahamud criteria, and the power must be exercised sparingly and with abundant caution
Court orders
#- 1.Leave granted to the applicant to adduce and file additional evidence limited to six specified documents (survey plan 179/18 for LR No. 13461; letter of allotment dated 19th December 1999; transfer signed on behalf of Renton Company Limited; letter from Department of Defence to Commissioner of Lands dated 22nd February 1995; letters from Head of the Public Service to the Commissioner of Lands dated 3rd August 1998 and 8th July 1999; the Plaint and defence in Nairobi ELC No. 282 of 2012)
- 2.The additional evidence to be adduced by means of affidavit and filed as a Supplementary Record of Appeal within 14 days
- 3.The respondent to file a Replying Affidavit, if any, within 14 days of service
- 4.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C. Petition No. 38 of 2011
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules - discretionary power to take additional evidence on appeal from a superior court acting in original jurisdiction
Relief refused
#Leave to introduce the letter from the Registrar of Companies dated 15th March 2017 stating Renton Company Limited has never existed
The applicant abandoned this item upon the respondent producing the Certificate of Incorporation of Renton Company Limited
Costs
Costs of this application abide by the outcome of the 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.
(iv) Costs of this application abide by the outcome of the appeal.
Accordingly, the Notice of Motion dated 5th October 2017 has merit and is hereby allowed on the following terms:
We must stress here that this Court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.
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.
We observe that the guidelines given by the Supreme Court are not necessarily conjunctive but an applicant must substantially comply with the guidelines.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nduati & another v Makini & another (Environment and Land Case 528 of 2011) [2026] KEELC 329 (KLR)[2026] KEELC 329 (KLR)22 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Torino Enterprises Limited [2019] KECA 934 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 84 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/934/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.