Dim Properties Limited v Lamu Breeze Investments Limited & 6 others
The bottom line
#Kenya's Court of Appeal refused to let an appellant add new evidence on appeal, ruling you cannot use fresh material to fix a lost case.
What this practically means
#Executive summary
#Key legal issues
#Whether the proposed correspondence and searches satisfied the additional-evidence principles
Leave refused: the evidence was not directly relevant to the issues decided by the ELC, most of the letters post-dated the impugned judgment, the applicant failed the reasonable-diligence test, and the material would only patch gaps in its case.
The ELC had decided the appeal on fraud and priority of registration, not on the amalgamation correspondence now proposed. Most letters were written after judgment on November 22, 2019, supporting the respondents' assertion that the applicant wished to salvage its case. The inquiry to the Chief Land Registrar was only made in September 2019 in a suit pending since 2013, without explanation for the delay, and several searches were already produced at trial, undermining the claim that the land file was unavailable.
Governing principles for additional evidence on appeal
The court applied the Supreme Court's Mohamed Abdi Mahamud principles, including relevance, capacity to influence the result, reasonable diligence, credibility, absence of prejudice, and the prohibition on filling gaps.
The court recited the full eleven-point test from Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed, together with earlier Court of Appeal authority (Wanje v Sakwa; Kuwinda Rurinja; Diana Kethi Kilonzo), and stressed that such applications are to be determined case-by-case and sparingly with abundant caution.
Legal principles established
#- Applications for additional evidence on appeal must satisfy the Mohamed Abdi Mahamud principles, are determined case-by-case, and are granted sparingly with abundant caution; an unsuccessful party may not use additional evidence to make a fresh case, fill gaps or patch up weak points.
- Whether a party could reasonably have procured the further evidence in the course of trial is an essential fairness and due-process consideration in ruling on additional evidence.
Court orders
#- 1.The application dated July 22, 2022 for leave to adduce further evidence is dismissed
- 2.Costs of the application awarded to the 1st and 2nd respondents
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules, 2010 (present rule 31(1)(b))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dim Properties Limited v Lamu Breeze Investments Limited & 6 others", Case Analysis (2023). Civil Appeal (Application) – application dated July 22, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/469/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.