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Court of AppealDismissedCivil Appeal (Application) No. 84 of 2012 — application dated 5th February, 2020 in Civil Appeal No. 160 of 2016 (record of appeal references HCCC Number 12 of 2013)· [2021] KECA 197 (KLR)

Garissa Maize Millers Limited v Attorney General & 2 others (Civil Appeal (Application) 160 of 2016) [2021] KECA 197 (KLR)

Court of Appeal of Kenya
5 November 2021
WKW. KaranjaDMD. K. MusingaSKS. Gatembu Kairu
2,806 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let Garissa Maize Millers add new evidence on appeal because the documents existed all along during the trial.

What this practically means

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Executive summary

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Garissa Maize Millers Limited sued the respondents in the High Court at Garissa (Dulu, J.) seeking declarations and damages of Kshs 407,172,000 for property allegedly destroyed by the Kenya Defence Forces. By judgment delivered on 27th July 2016, the suit was dismissed: the plaintiff failed to prove that the KDF burnt the premises, and the special damages claim failed for want of proof, with each party bearing its own costs. While its appeal was pending, the applicant moved this Court by a notice of motion dated 5th February 2020 under Rule 29(1)(b) of the Court of Appeal Rules seeking leave to introduce additional evidence - a forensic report, audited accounts, bill of quantities, architectural drawings and invoices - or alternatively a reference to the High Court for re-trial on that evidence. The respondents opposed through written submissions confined to points of law. The Court, composed of W. Karanja, D. K. Musinga and S. Gatembu Kairu, JJ.A, framed a single issue: whether the applicant had made out a case for leave to adduce additional evidence on appeal. Applying the guidelines in Mzee Wanje, Torino and the Supreme Court's Mohamed Abdi Mohamed decision, the Court found the documents existed and were in the applicant's possession throughout the roughly three years the suit was pending, and that apart from saying the evidence was 'inadvertently forgotten' no due diligence was demonstrated. Nor could the Court ascertain that the evidence would influence the outcome, given the trial court's findings. The Court concluded the applicant sought a second bite of the cherry by filling gaps evident only after judgment, and dismissed the application with costs to the respondents.

Key legal issues

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Whether leave should be granted under Rule 29(1)(b) to adduce additional evidence on appeal

Holding

The application fails: the documents sought were in existence and in the applicant's possession when the suit was filed, no reasonable-diligence explanation was given, and the evidence's probative value could not be ascertained given the trial court's findings.

Reasoning

The Court applied the settled guidelines from Torino, Mzee Wanje and the Supreme Court's Mohamed Abdi Mohamed decision, requiring diligence, influence on the result, and credibility. The applicant merely said the evidence was 'inadvertently forgotten' during the roughly three years the suit was pending. The invoices were not proof of purchase and the bills of quantities could not prove the factory existed or was burnt by the KDF, so the Court could not say the evidence would influence the outcome. The application was an attempt to remedy gaps evident only after judgment.

p. 6

Legal principles established

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  • Additional evidence on appeal may be admitted only where it could not have been obtained with reasonable diligence before and during the hearing, it would probably have had an important influence on the result, and it is credible, though not necessarily incontrovertible.
  • Rule 29 of the Court of Appeal Rules is not a vehicle for importing fresh evidence discovered after trial or for patching up weak points in an unsuccessful litigant's case.
  • Even where the guidelines are met, additional evidence will be admitted only sparingly, on a case-by-case basis, and with abundant caution.

Court orders

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  1. 1.The application dated 5th February, 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(b)
  • Court of Appeal RulesRule 29(1)
  • Court of Appeal RulesRule 29(1)(a)
  • Court of Appeal RulesRule 42(1)
  • Court of Appeal RulesRule 43

Cases cited (7)

  • Attorney General vs Torino Enterprises Ltd
    (2019) eKLR
  • Mzee Wanjie & 93 Others vs Saikwa & Others
    (1982-88) 1 KAR 462/463
  • Mount Elgon Beach Properties Ltd vs Harrison Shikaru Mwanongo & Another
    (2019) eKLR
  • Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 Others
    (2018) eKLR
  • Mohamed Abdi Muhamud vs Ahamed Abdulahi Mohamad & 3 Others
    [2018] eKLR
  • Kuwinda Rurinja Co. Ltd vs Kuwinda Holdings Ltd and 13 Others
    Civil Appeal (Application) No. 8 of 2003 (2013) eKLR
  • Dorothy Nelima Wafula vs Hellen Nekesa Nielsen and Paul Fredrick Nelson
    [2017] eKLR
On appeal from
High Court of Kenya at Garissa
HCCC Number 12 of 2013
Jurisdiction invoked
Rule 29(1)(b) 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, "Garissa Maize Millers Limited v Attorney General & 2 others (Civil Appeal (Application) 160 of 2016) [2021] KECA 197 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. 84 of 2012 — application dated 5th February, 2020 in Civil Appeal No. 160 of 2016 (record of appeal references HCCC Number 12 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/197/eng@2021-11-05

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