Safe Cargo Limited v Embakasi Properties Limited & 2 others [2019] KECA 982 (KLR)
The bottom line
#Kenya's Court of Appeal refused Safe Cargo's bid to add new evidence on appeal, confirming appellate courts will not fill evidence gaps after 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 proposed additional evidence is directly relevant to the appeal and would influence or impact the result of the verdict
- 2.Whether the proposed additional evidence could not have been obtained with reasonable diligence for use at the trial
- 3.Whether the Court should admit affidavits and statements filed in a suit whose hearing is ongoing before another court
- 4.Whether the affidavits purportedly drawn and filed by the Attorney General should be admitted given doubts over their propriety
Key legal issues
#Applicable principles for admitting additional evidence on appeal
The Court applied the Supreme Court's guidelines in Mohamed Abdi Mahamud, emphasizing relevance, influence on the verdict, and lack of reasonable diligence at trial
Rule 29(1) confers a discretion to take additional evidence for sufficient reason. The Court adopted the Supreme Court's enumerated principles: the evidence must be directly relevant, capable of influencing the result, not obtainable with reasonable diligence, credible, not voluminous, not aimed at filling gaps, and its admission must be proportionate and not prejudicial. The applicant bore the burden of satisfying these criteria, which it failed to do.
Admissibility of material from ongoing proceedings in another court
Statements and pleadings in a suit still pending before the ELC cannot be admitted as additional evidence in this appeal
The proposed evidence emanated from ELC Case No. 233 of 2009, whose hearing was ongoing. Until the trial court delivers judgment, its pleadings neither prove nor establish any fact in issue. Admitting them would interfere with the ELC's jurisdiction and prejudice its evaluation of evidence. The Court invoked the Supreme Court's insistence on protecting the jurisdiction of a court duly vested with jurisdiction.
Due diligence and the Part Development Plan
The PDP was a public document the applicant could have obtained with due diligence and was its own document in its possession for three decades
The applicant claimed the evidence emerged only during the ELC hearing, but the 1st respondent demonstrated the Part Development Plan was the applicant's own document, in its possession for over thirty years. Being a public document, it could have been procured with reasonable diligence for use at trial. Failure of the due-diligence criterion was independently fatal to the application.
Authenticity of the affidavits purportedly drawn by the Attorney General
Because the propriety and cogency of the Ochieng and Wango affidavits were in issue, the Court declined to exercise its discretion to admit them
The affidavits on their face indicated they were drawn and filed by the Attorney General, yet State Counsel with conduct of the matter disavowed them. While the Court did not determine their propriety, the unresolved doubt over their authenticity made it inappropriate to admit them as additional evidence.
Legal principles established
#- The power to receive additional evidence on appeal is discretionary and must be exercised sparingly, only for fresh evidence of significance
- Pleadings and statements filed in another suit that is pending and undetermined cannot be used as items of evidence in a different suit
- Parties cannot be permitted to fill lacunae in their evidence at the appellate stage
- An appellate court should restrain itself from delving into matters that are live before another court
Court orders
#- 1.The Notice of Motion dated 31st December 2018 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No. 411 of 2003
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules
Relief refused
#Introduction of additional evidence (supporting affidavits of Ajit Shah, Priscilla Njeri Wango, Gordon Ochieng, witness statements, and the Part Development Plan)
The evidence could have been obtained with due diligence; it stems from an ongoing trial before the ELC; the propriety of the affidavits is in issue; and the applicant seeks to fill lacunae in its evidence at the appellate stage
Costs
The Notice of Motion dated 31st December 2018 is dismissed with costs.
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.
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
pleadings filed in another suit pending before a trial court cannot be used as items of evidence in a different suit
We reiterate parties cannot be allowed to fill the lacunae in their evidence at the appellate stage
The ELC is seized of the matter and this Court should restrain itself from delving into matters that are live before another Court
We find the Notice of Motion dated 31st December 2018 has no merit and is hereby dismissed with costs
Issues in the judgment
#The coram lists five judges but only five signature blocks appear and the body of the ruling is a single judgment of the court; no anomaly, but the coram in the header omits honorific formatting for Otieno-Odek consistent with the rest
The judgment refers to the applicant's title deriving from LR No. 902/290 and 9042/303 versus the 1st respondent's LR No. 9042/224; the parcel numbering is internally inconsistent between paragraphs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safe Cargo Limited v Embakasi Properties Limited & 2 others [2019] KECA 982 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 276 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/982/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.