Owner of Motor Vessel “Dolphin Star” v ET timbers PTE Limited (Civil Appeal (Application) E078 of 2021) [2024] KECA 37 (KLR)
The bottom line
#Kenya's Court of Appeal will only accept new evidence on appeal in rare cases, admitting just the Bills of Lading while rejecting everything else.
What this practically means
#Executive summary
#Key legal issues
#Whether the time charterparty and related documents qualified as admissible additional evidence
Refused; the documents were not new, were within the applicant's knowledge and reach with due diligence, and the applicant merely sought legible copies of what was already on record
The Court scrutinised the supporting affidavit and found nothing showing the charterparty and related documents were beyond the applicant's reach or could not have been produced at trial. Legible copies of documents common to the parties do not constitute new evidence. The respondent's affidavit showed the issues were not contested at trial although there was opportunity to raise them. The Motion therefore failed on this category.
Whether records of subsequent admiralty cases and pending High Court matters were directly relevant to the appeal
Refused; those records would introduce issues not litigated in Admiralty Cause No E003 of 2021, and whether the subsequent cases amount to abuse of process falls to be determined in those cases, not in this appeal
The Court held that the record of Admiralty Case No E005 of 2023 and the Kenya Ports Authority claim concerned enforcement of port charges, were pending before the trial court, and had no nexus to the impugned ruling. Abuse of process in those cases is a matter for those cases. The applicant also failed to show which grounds of appeal the records would advance, so they were not directly relevant under rule 31.
Whether the belatedly issued Bills of Lading met the threshold for admission as additional evidence
Granted; the Bills of Lading were inaccessible at trial because their release was dependent on payment of freight on 25th August 2022, an event beyond the applicant's control, and they are directly relevant to whether the respondent was the carrier
The impugned decision was based on affidavit evidence, and the Bills of Lading go to the central issue of whether the respondent was the carrier and whether the applicant was entitled to arrest its ship. Their release depended on the consignee's payment of freight, made after the ruling. The Court limited the leave strictly to that purpose, holding the Bills met the requirements of rule 31.
Whether the Certificates of Entry showing insurance periods were admissible
Refused; the first certificate existed before the impugned decision and could have been obtained with diligence, and admitting the second would re-open the case and prejudice Starryway, a non-party
The first certificate covered a period in which it was in existence and nothing prevented diligent procurement before delivery of the ruling. The second postdated the ruling. Admitting them to prove Starryway's agency might prejudice Starryway's case in ongoing proceedings in which it is a party but which are separate from this appeal. The Court concluded the certificates failed the rule 31 test.
Legal principles established
#- On appeal from a superior court exercising original jurisdiction, the Court of Appeal may re-appraise evidence and draw inferences of fact and may, in its discretion and for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court
- Additional evidence will only be allowed exceptionally, sparingly, on a case-by-case basis, and must be directly relevant to the appeal; evidence introduced solely to fill gaps or make a fresh case on appeal will be refused
- Nothing bars either party from supplying clearer copies of documents already on record to facilitate just and fair determination of an appeal; such supply does not require leave to adduce additional evidence
Court orders
#- 1.Leave granted to the applicant to adduce new evidence pursuant to rule 31 of the Court of Appeal Rules, limited to a copy of the Bills of Lading issued on behalf of the Master of the motor vessel "Dolphin Star" to the applicant
- 2.The applicant to file and serve a further supplementary record of appeal within fourteen (14) days from the date of the ruling
- 3.Costs in the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Admiralty Cause No E003 of 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 31 and 94 of the Court of Appeal Rules, 2022, invoking Articles 25(c) and 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okemwa v Ogowo (Environment and Land Appeal E001 of 2025) [2025] KEELC 6218 (KLR)[2025] KEELC 6218 (KLR)23 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Owner of Motor Vessel “Dolphin Star” v ET timbers PTE Limited (Civil Appeal (Application) E078 of 2021) [2024] KECA 37 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/37/eng@2024-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.