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Court of AppealDismissedNotice of Motion dated October 31, 2022 in the pending appeal (from ELC Reference under Article 162(2)(b) of the Constitution and sections 127 and 128 of the Land Act)· [2023] KECA 1442 (KLR)

Afrison Export Limited & another v National Land Commission & 9 others (Civil Appeal (Application) 303 of 2019) [2023] KECA 1442 (KLR)

Court of Appeal of Kenya
24 November 2023
3,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let the Afrison applicants add new evidence on appeal, confirming appeals are decided on the trial record.

What this practically means

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Executive summary

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This is an interlocutory ruling of a three-judge bench of the Court of Appeal at Nairobi (Musinga, P, Asike-Makhandia and Mumbi Ngugi, JJA) delivered on 24 November 2023 in an appeal against a judgment of the Environment and Land Court of 28 June 2019 (Obaga, Bor and Eboso, JJ.). The ELC had dismissed a reference brought by the National Land Commission under Article 162(2)(b) of the Constitution and sections 127 and 128 of the Land Act concerning Lr 7879/4, finding inter alia that the compulsory acquisition of the portion on which Ruaraka High School and Drive-in Primary School sit did not meet the threshold of public purpose and that the Commission misled the Ministry of Education, causing loss of public funds. The applicants, dissatisfied, moved the Court of Appeal by Notice of Motion dated 31 October 2022, seeking leave to amend the memorandum of appeal and to adduce further and additional evidence under rule 29(1)(b) of the Court of Appeal Rules, relying principally on a Cabinet Secretary's report of 17 April 2018, parliamentary committee reports, and material from other cases. On hearing the application, the parties elected to pursue only the additional-evidence prayer. Applying the Mohamed Abdi Mahamud principles and the older caution in Mzee Wanjie v Saikwa, the Court held the documents were largely already on the record, in the public domain, of little probative value, voluminous, or obtainable with due diligence, and that the applicants were seeking to reopen and fill gaps in their case. The application was dismissed with costs to the 2nd, 7th and 9th respondents. The underlying appeal remains pending; nothing in this ruling disturbs the ELC decision.

Key legal issues

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01

Test for admission of additional evidence on appeal under rule 29(1)(b)

Holding

The Court applies the Mohamed Abdi Mahamud principles conjunctively and the Mzee Wanjie caution: the power is exercised sparingly and only in exceptional circumstances where the evidence is relevant, credible, not voluminous, and could not have been obtained with reasonable diligence at trial

Reasoning

The Court restated the Mohamed Abdi Mahamud principles as governing additional evidence on appeal, and the older Mzee Wanjie caution that the rule is not a licence for unsuccessful litigants to patch weak points. The principles are to be read conjunctively, so failure of one is fatal. The discretion exists for sufficient reason, but it protects finality of litigation and fairness to the responding party.

p. 6
02

Whether the documents sought (Cabinet Secretary report, parliamentary committee reports, pleadings from other cases) qualified as admissible additional evidence

Holding

They did not: much was already on the record or in the public domain, was of little probative value, predated the judgment, or was voluminous and unrelated to the issues before the ELC; post-judgment events cannot ground the application

Reasoning

The Court found that the correspondence and documents were already part of the record of appeal, and that public documents such as parliamentary committee reports are not conclusive and carry little evidential or probative value. With due diligence most of the evidence could have been obtained at trial. The applicants were really seeking to reopen, re-argue and fill gaps in their evidence under the guise of the application, which would offend the doctrine that there should be an end to litigation.

p. 7
03

Whether the appeal could be determined without the additional evidence

Holding

Yes; the appeal can effectively be determined on the oral and documentary evidence already on record

Reasoning

A core Mohamed Abdi Mahamud requirement is that the additional evidence would influence or impact the result of the verdict. The Court was not persuaded the evidence would have an important impact on the result, since the appeal could effectively be determined on the evidence already in the record. Failure of this limb was independently fatal to the application.

p. 7

Legal principles established

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  • The power to receive additional evidence on appeal under rule 29(1)(b) must be exercised sparingly, with great caution, and only where the governing principles in Mohamed Abdi Mahamud are satisfied conjunctively
  • Additional evidence may not be admitted on appeal to fill lacunae, patch weak points, or make out a fresh case; the appeal must be determinable on the evidence already on record

Court orders

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  1. 1.The application for adduction of additional evidence is dismissed
  2. 2.Costs of the application awarded to the 2nd, 7th and 9th respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Land Actsections 127 and 128
  • Court of Appeal Rulesrule 29(1)(b) and (2)
  • Land Planning Actsection 19

Cases cited (4)

  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
  • Mzee Wanjie and 93 others v A K. Saikwa & Others
    [1984] eKLR
  • Okiya Omtata & another v Afrison Export Import Limited & another, Petition 1488 of 2016
  • Afrison Export Import Limited & Another v Attorney General, HCCC No. 617 of 2012
On appeal from
Environment and Land Court
Reference under Article 162(2)(b) of the Constitution and sections 127 and 128 of the Land Act (suit property Lr 7879/4)
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules; the appeal itself arises from the ELC's original jurisdiction under Article 162(2)(b) of the Constitution and sections 127 and 128 of the Land Act

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, "Afrison Export Limited & another v National Land Commission & 9 others (Civil Appeal (Application) 303 of 2019) [2023] KECA 1442 (KLR)", Case Analysis (2023). Notice of Motion dated October 31, 2022 in the pending appeal (from ELC Reference under Article 162(2)(b) of the Constitution and sections 127 and 128 of the Land Act). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1442/eng@2023-11-24

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