Mainkam Limited & another v Multichoice Kenya Limited (Civil Appeal (Application) 49 of 2020) [2025] KECA 1596 (KLR)
The bottom line
#The Court of Appeal refused Mainkam's bid to add new evidence in its Kshs.153 million dispute with Multichoice, finding the application an unexplained, eight-years-too-late patch-up job.
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 applicants have satisfied the legal test for adducing further evidence on appeal under rule 29(1)(b) of the Court of Appeal Rules
Key legal issues
#Whether the applicants satisfied the threshold for admission of additional evidence on appeal under rule 29(1)(b)
The applicants did not satisfy the threshold: the documents could have been obtained with reasonable diligence during the eight years of trial, their credibility was contested and their influence on the outcome speculative, and the application sought to patch up gaps in the defence.
The Court applied Ladd v Marshall as adopted in Mzee Wanjie and the guidelines in Mohamed Abdi Mahamud. Bank statements belonging to the applicants were always in their custody or obtainable from their banks; highlighted entries did not show payee or purpose. KRA-held customs forms could have been compelled at trial. Re-opening after years would prejudice the respondent, and there was a nearly ten-month unexplained delay.
Whether the documents were apparently credible and capable of influencing the result
The documents lacked authentication and a clear nexus to the customs entries, so their influence on the result was at best speculative.
The bank statements showed only purchase of bankers' cheques without indicating payee or purpose; the respondent contested their credibility, noting absence of verification stamps, dates of issue, and proof of payment to KRA. Unauthenticated documents, the Court held, would have no evidential value in aid of the applicants' case.
Legal principles established
#- The jurisdiction to admit additional evidence on appeal is exceptional and sparingly exercised, and requires compliance with the Ladd v Marshall criteria as amplified by the Supreme Court in Mohamed Abdi Mahamud
- Additional evidence may not be used to fill gaps or patch up deficiencies in an unsuccessful party's case
- Inordinate and unexplained delay in seeking to adduce additional evidence after judgment weighs against admission
Court orders
#- 1.The Notice of Motion seeking leave to adduce additional evidence on appeal is dismissed
- 2.The applicants shall bear the respondent's costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No. 492 of 2012
- Jurisdiction invoked
- Rules 29(1)(b), 42 and 47 of the Court of Appeal Rules, section 3A of the Appellate Jurisdiction Act, and Articles 25(c), 50 and 159 of the Constitution
Relief refused
#Leave to adduce additional evidence in the form of customs entry forms and bank statements
The applicants failed to satisfy the Ladd v Marshall and Mohamed Abdi Mahamud threshold: no due diligence explanation, documents of doubtful credibility and speculative influence, and the application was an attempt to patch up gaps in their case
Remittal to the trial court to take the additional evidence
Not granted as the application itself was found devoid of merit
That this Court itself take the additional evidence
Not granted as the application itself was found devoid of merit
Costs
The applicants shall bear the respondent's costs.
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.
Accordingly, we find this application devoid of merit and dismiss it.
The applicants shall bear the respondent's costs.
This jurisdiction, however, is exceptional and sparingly exercised.
re-opening the case after so many years will definitely be prejudicial to the respondent, not to mention that equity does not aid the indolent.
The Court is persuaded by the respondent's argument that the application is intended to repair deficiencies in the applicants' case, which is impermissible.
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.
- Patrick Okuku & 7 others v James Kutsushi Atindo & 8 others [2016] KECA 580 (KLR)[2016] KECA 580 (KLR)25 Mar 2015
Cite this brief
#Cite this brief
Caselaw, "Mainkam Limited & another v Multichoice Kenya Limited (Civil Appeal (Application) 49 of 2020) [2025] KECA 1596 (KLR)", Case Analysis (2025). Notice of Motion dated 8th July 2020 in appeal from HCCC No. 492 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1596/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.