Andima v Municipal Council of Mombasa & 4 others (Civil Appeal (Application) 149 of 2018) [2023] KECA 255 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a party add new evidence on appeal because it was available at trial and filed too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 5th Respondent's intended additional evidence (an affidavit and supporting documents on payment of the auction purchase price) meets the threshold for admission as additional evidence on appeal under Rule 29 and the Mohamed Abdi Mahamud principles
- 2.Whether the intended evidence is directly relevant and central to the determination of the appeal, which concerns the ultra vires exercise of public power
- 3.Whether the Applicant exercised reasonable diligence in producing the evidence at the trial
- 4.Whether the delay of over a year since the declaration of mistrial justifies admission of the evidence in the interest of justice
Key legal issues
#Whether the intended additional evidence was directly relevant to the issues in the appeal
The evidence on payment of the purchase price related to a private transaction between the Applicant and the auctioneer, not to the ultra vires exercise of public power which was the sole issue in the judicial review appeal, and was therefore not relevant or central.
The appeal challenges whether the Magistrate, Auctioneer and Registrar acted ultra vires their statutory powers, and whether certiorari should have issued. The proposed evidence of payment of consideration is a private matter between the 5th Respondent and the 3rd Respondent and was not the subject of the High Court's determination. The Applicant himself conceded he did not tender it because judicial review is concerned with process, not merits. Evidence not central to the decision below cannot aid the appeal.
Whether the Applicant demonstrated reasonable diligence and absence of delay
The evidence was at all times within the Applicant's knowledge since 2010, and the application filed over a year after the 17th June 2021 mistrial declaration was unexplained and inordinate.
The Applicant possessed the letter and cheques evidencing payment since the 2010 auction, so the evidence could have been obtained with reasonable diligence for use at trial. Further, after the mistrial declared on 17th June 2021, the application was not filed until 2022, more than a year later, with no explanation. Following Kanyuira v Kenya Airports Authority, an applicant who waits until the eleventh hour to seek to introduce crucial evidence invites the inference that he is attempting to make a fresh case or patch up his case.
Whether the application satisfied the Mohamed Abdi Mahamud conditions precedent
The application failed the governing principles laid down by the Supreme Court, particularly direct relevance, influence on the result, reasonable diligence, and the prohibition on using additional evidence to make a fresh case on appeal.
Applying the Mohamed Abdi Mahamud test as summarised in Kanyuira v Kenya Airports Authority, the court found the Applicant had not expounded on the relevance of the evidence, had not shown it could not have been produced with reasonable diligence, and the application could only be explained as an attempt to make a fresh case, fill up omissions or patch up the weak points of the case. The application therefore lacked merit.
Legal principles established
#- Additional evidence on appeal is admissible only in exceptional circumstances and sparingly, where it is directly relevant, would probably have an important influence on the result, could not have been obtained with reasonable diligence at trial, and is apparently credible; it may not be used to make a fresh case, fill gaps or patch up weak points.
- In determining whether to allow additional evidence, the Court must ask whether the evidence was central to the determination by the superior court; not every submission made by parties is central.
- The interest of justice is the overarching consideration, and the court will assiduously scrutinize any evidence presented as additional evidence.
Court orders
#- 1.The Motion dated 9th May, 2022 seeking to take additional evidence by way of affidavit is dismissed
- 2.Costs of the application awarded to the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment & Land Court at Mombasa
- ELC Misc. Civil Application JR No. 114 of 2010
- Jurisdiction invoked
- Rule 29(1) of the Court of Appeal Rules, 2010 (now Rule 31 of the 2022 edition) – discretion to take additional evidence for sufficient reason
Relief refused
#Leave to take additional evidence by way of an affidavit sworn by the 5th Respondent
The evidence was not directly relevant or central to the judicial review appeal, was available with reasonable diligence at the trial, and the application was an attempt to make a fresh case on appeal brought after unexplained inordinate delay
Costs
Dismissed with costs to the Appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In determining whether or not to allow additional evidence, the Court must determine whether the additional evidence was central to the determination of the High Court. It is not every submission made before the Court by the parties that is central to the determination.
To the contrary, the Appellant contends that the said evidence was at all times available. In those circumstances, the application to adduce the said evidence may only be explained on the basis of an attempt to make a fresh case in the appeal, fill up omissions or patch up the weak points in the case.
This application was not filed till 28th September, 2022, more than a year later. No explanation has been given to justify this delay.
The overarching consideration in an application for the production of additional evidence is whether it is in the interest of justice to do so, bearing in mind the broader impact of allowing such evidence to be admitted.
It is my considered view, based on the foregoing, that the application has not met the conditions precedent in the Mohamed Abdi Mahamud Case and for that reason the Motion dated 9th May, 2022 lacks merit and is hereby dismissed with costs to the Appellant.
Issues in the judgment
#The judgment contains inconsistent dates for the filing of the application and the mistrial declaration: the Appellant's grounds of opposition state the application was filed on 11/5/2022 while the court's own holding states 28th September, 2022; and the grounds of opposition reference a Notice of Motion dated 18/10/2022 for judicial review, which post-dates the judgment.
The replying affidavit refers to the judicial review Notice of Motion as dated 18/10/2022 while the appeal is stated to have been filed in 2018, an internal date inconsistency in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andima v Municipal Council of Mombasa & 4 others (Civil Appeal (Application) 149 of 2018) [2023] KECA 255 (KLR)", Case Analysis (2023). Civil Appeal (Mombasa) – application dated 9th May, 2022 in the main appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/255/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.