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Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 20 of 2019

Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (Interested Parties)

Supreme Court of Kenya
29 November 2019
1,401 words in judgment
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The bottom line

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Supreme Court rejects new evidence after 7 years, requiring diligence and barring gap-filling.

What this practically means

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The Supreme Court dismissed a hospital's attempt to bring in old documents years after the case started. The court said the hospital did not show it tried to find the documents earlier. The evidence was meant to fix weak parts of its case, which is not allowed. The court followed strict rules that new evidence must be relevant, couldn't have been found earlier, and must not be used to patch up a weak argument.

Executive summary

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This is a ruling by a five-judge bench of the Supreme Court of Kenya on an application by the 2nd Respondent, The Moi Teaching and Referral Hospital, to adduce additional evidence before the hearing of the main petition. The applicant sought to introduce documents from the 1930s, loan applications, board minutes, and reports to support its case that the disputed land was public property. The Court applied the principles from Hon. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others, which require that additional evidence must be directly relevant, could not have been obtained with reasonable diligence, must not fill gaps or patch up weak points, and must be proportionate. The Court found that the applicant failed to demonstrate reasonable diligence, as the only explanation was a belated suggestion to check the hospital archive, with no evidence of efforts over the 7 years the appeal was pending. The Court also held that the evidence was meant to fill lacunae in a second appeal, which is impermissible, and doubted its usefulness. The application was unanimously dismissed, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd Respondent/Applicant should be granted leave to adduce additional evidence before the hearing of the Petition.

Key legal issues

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01

Whether the 2nd Respondent/Applicant satisfied the principles for adducing additional evidence before the Supreme Court.

Holding

The application failed because the applicant did not demonstrate reasonable diligence in discovering and producing the evidence earlier, and the evidence was intended to fill gaps in its case.

Reasoning

The Court applied the principles from Hon. Mohamed Abdi Mahamud. It found that the only explanation for non-production was a belated suggestion to check the hospital archive, with no evidence of diligence over the 7 years the appeal was pending. The Court also noted that the evidence sought to fill lacunae in a second appeal, which is impermissible, and doubted its usefulness.

Legal principles established

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  • Additional evidence must be directly relevant and in the interest of justice.
  • The evidence must be likely to influence the outcome, though not necessarily decisive.
  • The party must show it could not have obtained the evidence with reasonable diligence earlier.
  • New evidence cannot be used to fill gaps or patch up weak points in the case.
  • The court must consider proportionality and prejudice to the other side.
  • In a second appeal, only issues of law are considered, not new facts.

Court orders

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  1. 1.The Notice of Motion Application dated 2nd July 2019 and filed on 10th July 2019 is hereby dismissed.
  2. 2.Each Party shall bear its costs of the Application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Articles 159(3)(d), 164(3) of the Constitution; Sections 3(e) and 31 of the Supreme Court Act, 2011; Rules 3(2), (4), 5, 18(1) and 53 of the Supreme Court Rules, 2012

Relief refused

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Leave to adduce additional evidence

The applicant failed to demonstrate reasonable diligence in obtaining the evidence earlier; the evidence was meant to fill gaps and remove lacunae; and the evidence would not be of use to the Court.

Costs

Each Party shall bear its costs of the Application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Notice of Motion Application dated 2nd July 2019 and filed on 10th July 2019 is hereby dismissed.
p. 5 Final order dismissing the application for additional evidence
Each Party shall bear its costs of the Application.
p. 5 Costs order
We see no evidence that save for Sylvia Nyariki's 'suggestion', on an unknown date, that the Hospital Archive may have useful and relevant information, no other evidence is given as to how, over the last 7 years when the appeal before the Court of Appeal was pending and prior to that, while the matter was before the High Court, the 2nd Respondent's officers acted to secure its case to the highest possible level.
p. 5 Lack of reasonable diligence
It is also our opinion that the evidence sought to be adduced is certainly meant to fill gaps in evidence and remove lacunae in the 2nd Respondent's case in a second appeal where the issues to be addressed are matters of law and not of fact.
p. 5 Evidence intended to fill gaps

Key timeline

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2019-07-10
Moi Teaching and Referral Hospital files application to adduce additional evidence (dated 2 July 2019)

Practical implications

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For lawyers

Strict scrutiny for late evidence

When seeking to introduce additional evidence on appeal, you must document every effort to locate the evidence earlier. Mere belated suggestions to check archives without proof of diligence over years will fail. Also, ensure the evidence is not merely filling gaps—especially in a second appeal where only law is reviewed.

For businesses

Litigation: gather evidence early

If your business is involved in a long-running dispute, gather all relevant documents as soon as possible. Courts will not allow you to introduce new evidence years later, even if it seems important. You must show you tried to find it earlier. Plan your evidence strategy from the start to avoid losing your case on a technicality.

For individuals

Appeals: no second chances for evidence

As an individual, if you lose a case and want to appeal with new evidence, you must act quickly and diligently. The court will reject your application if you waited years or if the evidence just fills a gap. Always present all your evidence at the trial—the appeal stage is too late for new facts.

Frequently asked questions

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Can I introduce new evidence in the Supreme Court of Kenya after losing an appeal?+

Yes, but only under strict conditions. The evidence must be directly relevant, could not have been obtained earlier with reasonable effort, and must not be used to fill gaps in your case. The court also considers fairness and proportionality. Without proof of diligence, your application will be dismissed.

What does 'reasonable diligence' mean for additional evidence in Kenya?+

Reasonable diligence means you tried hard to find the evidence before the trial or earlier appeal. For example, checking archives, requesting documents, or searching records. If you only do this years later without showing earlier attempts, the court will say you lacked diligence. You must document your efforts.

Can I use new evidence to fix a weak case in the Kenyan Supreme Court?+

No. The court prohibits using additional evidence to patch up weak points or fill lacunae in your case. This is especially true in a second appeal, where the court only considers legal questions, not new facts. The evidence must be genuinely unavailable earlier, not a way to improve your case retroactively.

What happens if the other party objects to new evidence in a Kenyan appeal?+

The court will weigh the objector's arguments about prejudice and lack of diligence. If the applicant fails to meet the strict principles, the court will dismiss the application. Each party may be ordered to bear its own costs, as happened in this case. The objector should highlight the applicant's lack of diligence and the evidence's gap-filling nature.

Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Minister for Health & another v Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (Interested Parties)", Case Analysis (2019). Petition 20 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/14/eng@2019-11-29

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