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ELCDismissedNot stated in the judgment (appeal against Ruling of Chairman, Business Premises Rent Tribunal delivered 10th February 2017)· [2019] KEELC 5035 (KLR)

Intercountries Importers and Exporters Ltd v Total Security Limited & 7 others [2019] KEELC 5035 (KLR)

Environment and Land Court
27 March 2019
EOE. O. Obaga
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let an appellant add new evidence on appeal because it could have been obtained earlier with reasonable effort.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (E. O. Obaga, J) determined a Notice of Motion dated 19th March 2018 in an appeal against a Ruling of the Chairman of the Business Premises Rent Tribunal delivered on 10th February 2017. The Applicant sought leave to file a Supplementary Record of Appeal, that the filed Supplementary Record be deemed duly filed, and consolidation with ELC 1343 of 2016; the consolidation prayer was spent by the time of the hearing, leaving only the additional-evidence question. The Applicant, represented by M/s Kethi Kilonzo, argued that materials from ELC 1343 of 2016 and HCCC No. 1400 of 2004 were relevant, having only learned of the former when served with a Notice to Show Cause, and that the leases in HCCC No. 1400 of 2004 were entered into after judgment had been reserved. The 1st and 2nd Respondents opposed, calling the application an abuse of process, noting ELC 1343 of 2016 had been withdrawn, that the materials were not before the Tribunal, and that HCCC No. 1400 of 2004 was subject of an appeal to the Court of Appeal. The 3rd Respondent similarly opposed, stressing that the appeal concerned only the Tribunal's jurisdiction. Applying the Ssemwogerere criteria quoted in Mohamed Abdi Mahamud and the Ladd v Marshall test adopted in K. Tarmohamed v Lakhani, the court held the application was filed a year after the appeal with unexplained delay, and the HCCC No. 1400 of 2004 proceedings were ready and certified before the Tribunal application was lodged, so could have been obtained with due diligence. The application was dismissed with costs to the 1st, 2nd and 3rd Respondents.

Key legal issues

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01

Whether leave should be granted to file a Supplementary Record of Appeal introducing additional evidence

Holding

Leave refused; the application failed the threshold for admission of additional evidence on appeal

Reasoning

The court applied the Ladd v Marshall test as adopted in K. Tarmohamed v Lakhani and the Ssemwogerere criteria quoted in Mohamed Abdi Mahamud. The proceedings in HCCC No. 1400 of 2004 were ready and certified by 14th November 2016, before the Tribunal application was filed on 24th November 2016, so with due diligence they could have been obtained for the Tribunal. The application was also filed a year after the appeal with unexplained delay, and the judgment was itself under appeal to the Court of Appeal, so its proceedings could not influence this appeal.

p. 3

Legal principles established

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  • An appellate court may admit additional evidence only in exceptional circumstances: due diligence, relevance, credibility, probable influence on the result, and absence of undue delay
  • The Ladd v Marshall conditions govern reception of fresh evidence on appeal, the first being that the evidence could not with reasonable diligence have been obtained for use at the trial

Court orders

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  1. 1.The Notice of Motion dated 19th March 2018 seeking leave to file a Supplementary Record of Appeal is dismissed
  2. 2.Costs of the application awarded to the 1st, 2nd and 3rd Respondents

Authorities

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Cases cited (4)

  • Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 3 Others
    [2018] eKLR
  • Attorney General Vs Paul Kawanga Ssemwogerere & Another, Constitutional Appeal No. 2 of 2004
    [2004] UGSC 3
  • K. Tarmohamed Vs Lakhani
    null
  • Ladd Vs Marshall
    [1954] 1 W.L.R. 1489
On appeal from
Business Premises Rent Tribunal
Not stated
Jurisdiction invoked
Appeal against the Ruling of the Chairman of the Business Premises Rent Tribunal (statutory appeal; provision not cited in the judgment)

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, "Intercountries Importers and Exporters Ltd v Total Security Limited & 7 others [2019] KEELC 5035 (KLR)", Case Analysis (2019). Not stated in the judgment (appeal against Ruling of Chairman, Business Premises Rent Tribunal delivered 10th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5035/eng@2019-03-27

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