National Cereals and Produce Board v Erad Supplies And General Contractors Limited; Ethics & Anti-Corruption Commission (Interested Party)
The bottom line
#Kenya's Court of Appeal allowed the EACC to introduce new fraud evidence in a Kshs 100 million appeal, showing courts admit late evidence when there is good reason.
What this practically means
#Executive summary
#Key legal issues
#Whether the earlier dismissal of the appellant's additional-evidence application bars the EACC's application
No - the earlier application concerned a Public Investments Committee report, whereas the present one concerns evidence from South African authorities obtained via mutual legal assistance; they are not the same evidence.
The court compared the two applications. The 2014 application sought to introduce a PIC report adopted by the National Assembly; the instant application seeks to introduce evidence obtained in South Africa pursuant to mutual legal assistance showing the tender was fraudulently procured. The respondent failed to draw a parallel between the two bodies of evidence, and the court's own comparison found no substantial similarity, so the earlier ruling was no bar.
Whether the EACC satisfied the 'sufficient reason' and additional-evidence criteria
Yes - the evidence was obtained through the EACC's investigative mandate and mutual legal assistance after the trial, is relevant to alleged fraud underlying the award, and is credible; the respondent may reply, so no prejudice arises.
The court held that as a general rule appeals are decided on facts existing at the time of the judgment, but exceptional circumstances permit additional evidence. The EACC, unlike the appellant, had investigative powers and obtained the evidence in a foreign jurisdiction through mutual legal assistance in October 2014. The evidence goes to the integrity of the invoice underpinning an award of over Kshs 100 million. The respondent was granted leave to reply, curing any prejudice.
Legal principles established
#- An appellate court may admit additional evidence only in exceptional circumstances, upon 'sufficient reason', applying the criteria of due diligence, relevance, credibility and decisiveness.
- The existence of 'sufficient reason' is the key that unlocks the court's discretion under rule 31(1)(b); an unsatisfactory explanation for failure to adduce the evidence at trial is fatal.
- The factors for admitting additional evidence are interrelated and not individually decisive; absence of one consideration can dislodge the others.
Court orders
#- 1.The applicant (Ethics & Anti-Corruption Commission) is allowed to adduce additional evidence by way of affidavit evidence
- 2.The affidavit of Kipsang Sambai together with the evidence received from South African Authorities attached thereto is deemed duly filed and served upon all parties to the appeal
- 3.The 2nd respondent is granted leave to file a reply to the said affidavit within 15 days from the date of the order
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules; section 3A of the Appellate Jurisdiction Act; rules 29 and 42 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Cereals and Produce Board v Erad Supplies And General Contractors Limited; Ethics & Anti-Corruption Commission (Interested Party)", Case Analysis (2022). Civil Application 9 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1410/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.