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Court of AppealDismissedCivil Application No. 308 of 2015· [2020] KECA 406 (KLR)

Radheshyam Transport Limited & another v Corporate Business Centre Limited [2020] KECA 406 (KLR)

Court of Appeal
7 August 2020
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to accept new evidence about events that happened after the original judgment, confirming appeals cannot rely on later developments.

What this practically means

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Executive summary

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The appellants, Radheshyam Transport Limited and another, moved the Court of Appeal under Rules 29(1) and 42 of the Court of Appeal Rules seeking leave to adduce additional evidence in their pending appeal against a ruling of the High Court (Sergon, J, dated 20th November 2015) in HCCC No. 303 of 2014. That ruling had set aside a default judgment entered against the appellants for an unpaid balance of Kshs. 24,463,327 claimed for excavation works, and had referred the dispute to arbitration. The applicants sought to introduce correspondence showing that the respondent had requested the appointment of an arbitrator during the pendency of the appeal, contending that the appeal had been overtaken by events and would be nugatory. The respondent opposed, arguing the evidence was irrelevant, of no probative value, and related to events after both the judgment and the filing of the appeal. The court traced the governing principles from Elgood v Regina and Mzee Wanje v Saikwa (embodying the Ladd v Marshall criteria) and adopted the Supreme Court's crystallised guidelines in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad. Applying that threshold, the court held that additional evidence under Rule 29(1) must be evidence which existed at the time of the impugned judgment but was not placed before the trial court, so that its exclusion occasioned a miscarriage of justice. Since all the proposed correspondence post-dated the judgment and the filing of the appeal, it did not qualify. The application was dismissed with costs to the respondent.

Key legal issues

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01

The principles governing admission of additional evidence under Rule 29(1) of the Court of Appeal Rules

Holding

The court adopts the Supreme Court's guidelines in Mohamed Abdi Mahamud as the governing threshold, building on Ladd v Marshall and Elgood v Regina, and applies them to dismiss the application

Reasoning

The court traced the guiding principles from the locus classicus Elgood v Regina (adopting Lord Parker CJ's summary), through Mzee Wanje v Saikwa (Ladd v Marshall principles) to the Supreme Court's crystallised guidelines in Mohamed Abdi Mahamud, which it fully adopted. Applying those principles, the documents sought - correspondence on appointment of an arbitrator - arose after the impugned ruling and after the appeal was filed, so they could not have been produced at trial and do not qualify as additional evidence capable of remedying a miscarriage of justice.

p. 2
02

Whether post-judgment correspondence on the arbitration process constitutes admissible additional evidence

Holding

No. Evidence of events after the judgment and after filing of the appeal falls outside Rule 29(1)

Reasoning

The applicant sought to introduce letters showing that the respondent's advocates had requested appointment of an arbitrator during the pendency of the appeal, arguing the appeal had been overtaken by events. The court held that the Rule 29(1) jurisdiction is confined to evidence which existed at the time of the impugned judgment but was not placed before the trial court, such that its exclusion occasioned a miscarriage of justice. Post-judgment correspondence of that kind cannot fill that threshold and its admission would not address any miscarriage at first instance.

p. 3

Legal principles established

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  • Additional evidence under Rule 29(1) of the Court of Appeal Rules must be evidence that was in existence at the time of the impugned judgment but was not brought to the attention of the trial court; post-judgment events do not qualify
  • The Supreme Court's guidelines in Mohamed Abdi Mahamud govern the admission of additional evidence in appellate courts in Kenya, and such evidence is admitted only exceptionally, sparingly, and on a case-by-case basis

Court orders

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  1. 1.The Notice of Motion dated 1st April 2019 seeking leave to adduce additional evidence is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)
  • Court of Appeal RulesRule 42

Cases cited (6)

  • Administrator HH The Agakhan Platinum Jubilee Hospital vs. Munyambu
    [1985] KLR 127
  • Elgood vs. Regina
    [1968] E.A. 274
  • Republic vs. Parks
    [1969] ALL ER 364
  • Mzee Wanje & 93 Others vs. A. K. Saikwa, A. K. Kanyorati, S. W. Kibogo and William Gachiringa
    [1982-88] 1 KAR 462
  • Ladd vs. Marshall
    [1954] 1 WLR 1491
  • Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 Others
    [2018] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 303 of 2014
Jurisdiction invoked
Rule 29(1) and 42 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Radheshyam Transport Limited & another v Corporate Business Centre Limited [2020] KECA 406 (KLR)", Case Analysis (2020). Civil Application No. 308 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/406/eng@2020-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.