CENEAST AIRLINES LIMITED v KENYA SHELL LIMITED [1999] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal refused to hear new evidence on appeal because the party could have found it earlier and it wouldn't have changed the outcome.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the additional evidence (a letter dated 5th May 1994) could have been obtained by reasonable diligence during the trial in the superior court
- 2.Whether the additional evidence, had it been made available to the trial court, would have been likely to have affected the result of the suit
Key legal issues
#Whether the letter of 5th May 1994 could have been produced at trial by the exercise of reasonable diligence
No - the explanation of ignorance of the letter was disbelieved because Murichu had himself replied to it, and director Mondo was an active director present in the country.
The court found Murichu's own letter of 27th May 1994 referenced the letter in issue, so he must have known of its existence. Mondo, said to be abroad, was shown to be an active director who attended the VAT Appeals Tribunal in May 1998 and was in Kenya in October 1999. With a little diligence the letter would have been available to the trial court.
Whether the letter, if produced, would have affected the result of the suit
No - the matters in the letter were already placed before the trial court by way of Murichu's affidavit and counsel's submissions; the letter was merely confirmatory.
The court examined Murichu's affidavit of 25th February 1992 filed in the superior court and found that all matters contained in the letter were clearly and exhaustively placed before the court by that affidavit and counsel's submissions. A letter meant only to confirm evidence already before the court could not have affected the outcome.
Whether the respondent withheld the letter from the superior court
The contention does not arise; a party is under no obligation to provide evidence supporting its opponent's case.
The applicant alleged the respondent withheld the letter during the hearing of the application to set aside the ex-parte judgment. The court rejected this, holding that the respondent bore no duty to supply evidence that would support or prove a case the applicant had brought to court.
Legal principles established
#- Before the Court of Appeal permits the adduction of additional evidence, the applicant must show that the evidence could not have been obtained by reasonable diligence during the trial and that it would likely have affected the result of the suit.
Court orders
#- 1.The application to admit additional evidence on appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Courts
- H.C.C.C No. 593 of 1998
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules
Relief refused
#Admission of a letter dated 5th May 1994 as additional evidence on the appeal
The applicant failed to establish both limbs of the test: the letter could have been obtained with reasonable diligence, and it would not have affected the result as its contents were already before the trial court
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
before this Court permits the adduction of additional evidence the applicant must show:1. that the additional evidence sought to be adduced on appeal could not have been obtained by reasonable diligence during the trial in the superior court; and 2. that such evidence, had it been made available to the trial court, would have been likely to have affected the result of the suit.
We are of the view that with just a little diligence, the letter in issue would have been made available to the trial court.
Consequently, both the conditions we have stated above have not been established by the applicant and application must of necessity fail. The same is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CENEAST AIRLINES LIMITED v KENYA SHELL LIMITED [1999] KECA 4 (KLR)", Case Analysis (1999). Civil Case 174 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/4/eng@1999-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.