Kenya Electricity Transmission Company Limited v Onsongo & another (Environment and Land Appeal E028 of 2022) [2024] KEELC 4871 (KLR)
The bottom line
#KETRACO lost its bid to introduce new evidence on appeal because it failed to produce the document during the original trial.
What this practically means
#Executive summary
#Key legal issues
#Whether additional evidence may be admitted on appeal
The application failed because the payment voucher was prepared by and always in the applicant's custody and could have been produced at trial; the power to admit additional evidence is exercised sparingly and not to patch up gaps in a party's case.
Order 42 Rule 27 permits additional evidence only where the trial court refused to admit evidence it ought to have admitted, or where the appellate court requires it to pronounce judgment or for other substantial cause. Applying the Wanje v Saikwa and Mohamed Abdi Mohamud principles, the decisive test is whether the evidence could not be obtained with reasonable diligence. The voucher was the applicant's own document, and bank deposit/transfer records of its own payment would uniquely be in the applicant's possession, so the test was not met.
Whether an appellate court can compel a non-participating party to testify and produce documents
No. The 2nd respondent, who declined to participate in the trial, could not be compelled to appear and produce evidence on appeal; if she were compellable, an application should have been made at trial.
A person sued has the prerogative to appear or not, and a right to remain silent. The appellant never applied at trial to compel her attendance. Counsel for the applicant cited no law or authority empowering the appellate court to summon her to testify during an appeal, so prayer (3) could not be granted.
Third-party proceedings argument
The court corrected the applicant's misunderstanding: third-party proceedings are for a defendant seeking indemnity; the 1st respondent as plaintiff had already sued both defendants, and the applicant could have sought indemnity from her co-defendant.
The applicant misconceived the nature of third-party proceedings, which a defendant takes out against a party for indemnity not in the original pleadings. Here the plaintiff had sued both the appellant and the 2nd respondent, and the appellant as defendant could have filed a claim against the co-defendant for indemnity if found culpable.
Legal principles established
#- An appellate court will admit additional evidence only sparingly, and a party cannot use the power to patch up the weak points in its case or fill gaps in evidence
- Evidence that was in the custody of the applicant throughout the trial cannot qualify as additional evidence that could not have been obtained with reasonable diligence
- Under Order 42 Rule 27(2), a court allowing additional evidence must state whether it admits it under Rule 27(1)(a) or (b)
Court orders
#- 1.The application dated 30 January 2024 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Magistrates' Court
- Kisii CMCC No. 504 of 2019
- Jurisdiction invoked
- Appellate jurisdiction over the Magistrates' Court; Section 78(1)(d) of the Civil Procedure Act, Cap 21 and Order 42 Rules 27-29
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Company Limited v Onsongo & another (Environment and Land Appeal E028 of 2022) [2024] KEELC 4871 (KLR)", Case Analysis (2024). Kisii ELC Appeal (from Kisii CMCC No. 504 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4871/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.