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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 2182 (KLR)

David Mwaniki Kasimu v Collins Musyani Muthangya & another [2018] KEELC 2182 (KLR)

High Court of Kenya
31 July 2018
OAO. A. Angote
1,336 words in judgment
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The bottom line

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A Kenyan court refused to accept new evidence on appeal because the appellant could have obtained it earlier with reasonable effort.

What this practically means

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Executive summary

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The Appellant, who had lost his suit in Mwingi SRMCC No. 56 of 2002 concerning alleged forgery of transfer documents over Plot Numbers 15A and 15B, Mwingi Township, moved the High Court by Notice of Motion dated 24th January 2018 seeking leave to adduce additional evidence on appeal: the report of government document examiner E. Kenga dated 14th April 2008, which he said confirmed the transfer documents were forged by the late John Muthangya Kasimu. He argued the report was unavailable or withheld at trial, and that fraud or surprise justified its admission under Order 42 Rule 27 of the Civil Procedure Rules. The Respondents opposed, contending the Appellant never testified about reporting forgery to police, never sought to call the document examiner or investigating officer, and had not shown how he obtained the report. The court applied Order 42 Rule 27 and the criteria in K. Tarmohamed v. Lakhani and Ladd v. Marshall, holding that fresh evidence is admissible only where it could not have been obtained with reasonable diligence and is apparently credible. It found the Appellant knew of the police investigations, yet never formally requested the report or asked the court to compel the examiner to testify during trial; having chosen to prosecute his suit without the report, he could not introduce it after losing. The application was dismissed with costs.

Key legal issues

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01

Whether additional evidence (the document examiner's report) should be admitted on appeal under Order 42 Rule 27 of the Civil Procedure Rules

Holding

The application failed to satisfy the conditions for admission of additional evidence; it was dismissed with costs.

Reasoning

The court applied Order 42 Rule 27 and the criteria in K. Tarmohamed v. Lakhani and Ladd v. Marshall: fresh evidence is admissible only where it could not have been obtained with reasonable diligence at trial, would probably have an important influence on the result, and is apparently credible. The Appellant knew forgery was investigated, obtained specimen signatures for comparison, yet never asked the court to compel the document examiner or investigating officer to testify, and produced no evidence of a formal request for the report. He therefore lacked due diligence and could not introduce the report after losing.

p. 2

Legal principles established

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  • A party who failed to exercise due diligence in obtaining evidence at trial cannot, after losing, seek to introduce that evidence on appeal
  • Where a litigant alleges forgery and knows of a document examiner's report, due diligence requires requesting the court to compel the examiner to testify at trial

Court orders

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  1. 1.The Application dated 24th January 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 27

Cases cited (2)

  • K. Tarmohamed vs. Lakhani
    (1958) E.A 367
  • Ladd vs. Marshall
    (1954) 1 W.L.R 489
On appeal from
Subordinate Court at Mwingi (Senior Resident Magistrate's Court)
Mwingi SRMCC No. 56 of 2002
Jurisdiction invoked
Order 42 Rule 27 of the Civil Procedure Rules (appellate power to admit additional evidence)

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, "David Mwaniki Kasimu v Collins Musyani Muthangya & another [2018] KEELC 2182 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2182/eng@2018-07-31

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