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Court of AppealDismissedCivil Appeal No. 87 of 2017· [2020] KECA 848 (KLR)

PGM v AWM [2020] KECA 848 (KLR)

Court of Appeal of Kenya
6 March 2020
William OukoW. OukoRNR. N. NambuyeMartha Karambu KoomeM. K. Koome
2,113 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let an appellant add new evidence on appeal, confirming that fresh evidence is admitted only in exceptional, well-justified circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko (P), Nambuye and Koome, JJ.A) on a notice of motion by the appellant, PGM, seeking leave under Rule 29(1)(b) and (2) of the Court of Appeal Rules to adduce additional evidence on appeal against the judgment of Muigai, J in a matrimonial property dispute between the former spouses. The appellant sought to introduce evidence concerning a Nairobi property which, he said, had not been cited in the High Court proceedings, claiming he had purchased it for the respondent. The respondent opposed, pointing out that the marriage had been dissolved in January 2011, the suit took five years, and a search certificate showed the property was registered in her name on 31st March 2016 - after the judgment and well after the divorce - so it never formed part of the matrimonial property before the trial court. The Court restated the principles for admitting additional evidence on appeal: the Ladd v Marshall test of reasonable diligence, probable influence on the outcome, and credibility, as summarized by Chesoni Ag JA in Mzee Wanje v A K Saikwa, coupled with the caution that the power must be exercised sparingly and not to patch up weak points or build a fresh case. The applicant failed to explain why he had not produced the evidence at trial, did not demonstrate the evidence could not have been obtained with reasonable diligence, and the documents suggested the property was acquired after the judgment. The application was dismissed with costs to the respondent. The decision below was not disturbed; this was an interlocutory application within a pending appeal.

Key legal issues

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01

The principles governing admission of additional evidence on appeal under Rule 29 of the Court of Appeal Rules

Holding

The application was dismissed because the applicant failed to satisfy the Ladd v Marshall principles as adopted in Mzee Wanje v A K Saikwa: no explanation for not producing the evidence at trial, no demonstration that it could not have been obtained with reasonable diligence, and the evidence would not influence the appeal's outcome

Reasoning

The Court restated the discretionary nature of the power under Rule 29 and the three-pronged test from Ladd v Marshall as summarized by Chesoni Ag JA in Mzee Wanje: diligence, importance to the result, and credibility. The Court cautioned that the Rule is not meant to patch weak points or fill omissions. Applying the test, the applicant's failure to explain his omission, and the search certificate showing registration after judgment, defeated the application.

p. 3
02

Whether a suit filed by originating summons limits a party from introducing evidence

Holding

No. Even where a suit is filed by originating summons, a party may introduce evidence by way of affidavits and by calling witnesses for examination and cross-examination

Reasoning

The applicant blamed the originating summons procedure for his failure to adduce evidence on the suit property at trial. The Court rejected this, holding it is recognized practice that a party in such a suit may still introduce evidence by affidavit and call witnesses for examination and cross-examination, so the procedure did not justify the omission.

p. 3

Legal principles established

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  • The power to admit additional evidence on appeal must be exercised very sparingly and great caution should be exercised in admitting fresh evidence; it cannot be used to fill gaps in evidence or enable a party to make out a fresh case on appeal
  • Additional evidence is admissible on appeal only where it could not have been obtained with reasonable diligence for use at the trial, it would probably have an important influence on the result, and it is apparently credible

Court orders

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  1. 1.The application for leave to adduce additional evidence is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(b) and (2)
  • Married Women's Property Act 1882 of EnglandSection 17 (defunct)

Cases cited (4)

  • Mzee Wanje and 93 others vs. A K Saikwa and others
    (1982-88) 1 KAR 462
  • Ladd v Marshall
    [1954] 1 WLR 1489
  • Joginder Auto Services Ltd vs. Mohammed Shaffique and another
    Civil Appeal (Application) No. Nai 210 of 2000 (2001) eKLR
  • Kuwinda Rurinja Co. Ltd vs. Kuwinda Holdings Ltd
    Civil Appeal No. 8 of 2003
On appeal from
High Court of Kenya at Nairobi (Family Division)
Civil Suit No. 71 of 2011 (formerly ELC No. 2014 of 2011)
Jurisdiction invoked
Rule 29(1)(b) and (2) 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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Cite this brief

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Cite this brief

Caselaw, "PGM v AWM [2020] KECA 848 (KLR)", Case Analysis (2020). Civil Appeal No. 87 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/848/eng@2020-03-06

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