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Court of AppealDismissedCivil Application E009 of 2022· [2022] KECA 1161 (KLR)

Tropical Treasures Limited v Mangi & 3 others

Court of Appeal
21 October 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,615 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to hear new evidence from a company that had the documents all along during its original trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Malindi (Kairu, Nyamweya and Lesit, JJA) on a Notice of Motion dated 26th May 2022 by Tropical Treasures Limited, the applicant in an appeal against the decision of Olola J in ELC Civil Suit No. 26 of 2015 delivered on 24th October 2019. The applicant sought a stay of the Court's directions and leave to introduce material evidence - a letter dated 27th October 2016 in which the 1st and 2nd respondents instructed their advocates to withdraw the suit, and cash payment vouchers - so that the Court could reappraise and re-evaluate it under Rule 29 of the Court of Appeal Rules 2010 (now Rule 31 of the 2022 Rules). The applicant contended the letter and payments evidenced a settlement creating a contractual obligation, and that judgment against it condemned it unheard. The 1st and 2nd respondents opposed, deponing that only Kshs 2,020,000 of the Kshs 41,500,000 purchase price was paid, that the withdrawal instructions were conditional on payment of the balance which was not honoured, that no consent or notice of withdrawal was filed, and that the applicant participated fully in the ELC hearing. Applying the Ladd v Marshall principles as summarised in Mzee Wanjie and the Supreme Court's guidelines in Mohamed Abdi Mahamud, the Court held the applicant failed the due-diligence threshold: the vouchers were in its possession and the alleged settlement was within its knowledge during the trial in which it participated through advocates. The application was dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the Applicant satisfied the due-diligence threshold for admission of additional evidence on appeal

Holding

The application failed because the Applicant did not demonstrate any difficulty or due diligence in obtaining the evidence, which was in its own possession and within its knowledge during the ELC hearing.

Reasoning

The Court applied the Ladd v Marshall principles as summarised by Chesoni Ag JA and the Supreme Court's Mohamed Abdi Mahamud guidelines. The payment vouchers were in the Applicant's custody, the alleged settlement was known to it during trial, and it participated in the hearing through advocates. It therefore could not claim it was condemned unheard or that the evidence was unavailable. The Court declined to exercise its discretion in the Applicant's favour.

p. 5

Legal principles established

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  • Leave to adduce additional evidence on appeal is discretionary and the applicant must first demonstrate the evidence could not have been obtained with reasonable diligence for use at the trial before the other Ladd v Marshall criteria are addressed.
  • A party cannot fill gaps in its case on appeal by introducing new evidence that was within its knowledge and possession during the trial.

Court orders

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  1. 1.The Notice of Motion application dated 26th May 2022 is dismissed with costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 29
  • Court of Appeal Rules 2022Rule 31

Cases cited (6)

  • Mzee Wanjie and 93 others vs A. K. Saikwa and others

    Summary of principles for receiving further evidence on appeal, per Chesoni Ag JA

  • Ladd v Marshall
    [1954] 1 WLR 1489

    The three principles for admitting further evidence on appeal: due diligence, importance, credibility

  • The Administrator, HH The Aga Khan Platinum Jubilee Hospital vs Munyambu
    [1985] KLR 127

    Supporting the principles on additional evidence

  • Joginder Auto Service Ltd vs Mohammed Shaffique & Another
    [2001] eKLR

    Supporting the principles on additional evidence

  • Hon. Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamed and 3 others

    Guidelines for admission of additional evidence before appellate courts

  • Attorney General vs Torino Enterprise Limited
    [2019] eKLR

    Relied on by the Applicant for introducing exhibits as additional evidence

On appeal from
Environment and Land Court at Malindi
E.L.C Civil Suit No. 26 of 2015
Jurisdiction invoked
Rule 29 of the Court of Appeal Rules 2010, succeeded by Rule 31 of the Court of Appeal Rules 2022

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, "Tropical Treasures Limited v Mangi & 3 others", Case Analysis (2022). Civil Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1161/eng@2022-10-21

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