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ELCAllowedCMCC No. 380 of 2014 (Appeal)· [2022] KEELC 650 (KLR)

Tom Akoyo Mbirika & another v Shamshi Kassam Holdings [2022] KEELC 650 (KLR)

High Court of Kenya
24 March 2022
MOMogeni
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed an appeal to include a police-held forgery report, showing courts admit new evidence when it was beyond a party's reach.

What this practically means

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Executive summary

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By a Notice of Motion dated 2/12/2021, the appellants in an appeal from the judgment delivered on 16/11/2018 in CMCC No. 380 of 2014 sought leave to adduce further evidence, namely a document examiner's report by E.K Kenga, which they contended showed that the licence/lease agreement relied upon by the respondent at trial was a forgery. They explained that the report was in the custody of the police who investigated Criminal Case No. 1680 of 2009, and that the investigating officer frustrated their efforts to obtain it despite repeated letters to the DPP, DCI and NPS dated between 1/08/2018 and 18/06/2019. The respondent opposed the application, arguing that the intended evidence had no significance or relevance, that the appeal should flow from the decree and not be expanded into a fresh case, and that the application was an afterthought aimed at filling gaps in the appellants' trial case. The court applied the principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohammed and the caution in Republic v Ali Babitu Kololo that the power to receive additional evidence be used sparingly. It found the report directly relevant because the trial court's decision was primarily based on the contested licence agreement, and that the report could not have been obtained without police cooperation, an explanation unrebutted by the respondent. The court exercised its discretion to admit the additional evidence, allowing prayers 1 and 2 of the motion, with costs in the cause.

Key legal issues

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01

Whether the document examiner's report is admissible as additional evidence on appeal under Order 42 rule 27

Holding

Admitted: the report is directly relevant to the contested authenticity of the licence/lease agreement on which the trial court's decision was primarily based, and could not have been obtained without police cooperation.

Reasoning

The court applied the Mohamed Abdi Mahamud principles. The report was in the hands of the police, the appellants wrote repeated letters seeking it, the evidence was unrebutted, and the report bears directly on the authenticity of the licence agreement which was central to the trial court's finding. The court exercised its discretion to admit the evidence.

p. 3
02

Due diligence in obtaining the additional evidence

Holding

The appellants exercised reasonable diligence; the report was not within their control and was not publicly available.

Reasoning

The court found that though the appellants had knowledge of the report, it was in police custody and could only be produced with police cooperation. The respondent did not rebut the appellants' evidence of frustration by the investigating officer, and the report was not information in the public space.

p. 3

Legal principles established

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  • The unfettered power of the Court to receive additional evidence should be used sparingly and only where the evidence is fresh and would make a significant impact on the appeal.
  • Evidence in the hands of the police, not obtainable without police cooperation, may qualify as evidence that could not with reasonable diligence have been obtained for use at the trial.

Court orders

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  1. 1.Prayer 1 of the Notice of Motion dated 2/12/2021 allowed (leave to adduce further evidence)
  2. 2.Prayer 2 of the Notice of Motion dated 2/12/2021 allowed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 27

Cases cited (3)

  • Attorney General v Torino Enterprises Limited
    [2019] eKLR
  • Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohammed & 3 Others
    [2018] eKLR
  • Republic vs Ali Babitu Kololo
    [2017] eKLR
On appeal from
Magistrates' Court (CMCC No. 380 of 2014)
CMCC No. 380 of 2014
Jurisdiction invoked
Order 42 rule 27 of the Civil Procedure Rules

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, "Tom Akoyo Mbirika & another v Shamshi Kassam Holdings [2022] KEELC 650 (KLR)", Case Analysis (2022). CMCC No. 380 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/650/eng@2022-03-14

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