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Court of AppealDismissedCivil Case 174 of 1999

CENEAST AIRLINES LIMITED v KENYA SHELL LIMITED [1999] KECA 4 (KLR)

Court of Appeal of Kenya
17 December 1999
1,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Owuor, JJA) on an application under rule 29 of the Court of Appeal Rules by Ceneast Airlines Limited, the appellant and defendant below, seeking to admit as additional evidence on appeal a letter dated 5th May 1994 written by Kenya Shell Limited following a reconciliation meeting. The underlying suit, filed in the High Court (H.C.C.C No. 593 of 1998), claimed Ksh.21,438,001.95 as a balance for aviation fuel supplied in 1993; ex-parte judgment was entered in default of appearance and an application to set it aside was dismissed by Commissioner Gacheche on 20th July 1999, giving rise to the appeal. The court restated the two-limb test for admitting additional evidence: the evidence must not have been obtainable by reasonable diligence at trial, and it must have been likely to affect the result. On the first limb, the court disbelieved the explanation that the letter was unknown to the applicant, since Murichu had himself replied to it on 27th May 1994 and director Mondo was shown to be actively involved in the company's affairs. On the second limb, the court found the letter's contents were already exhaustively before the trial court through Murichu's affidavit and counsel's submissions, so the merely confirmatory letter could not have altered the outcome. The court also held the respondent was under no duty to supply evidence supporting the applicant's case. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 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. 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

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01

Whether the letter of 5th May 1994 could have been produced at trial by the exercise of reasonable diligence

Holding

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.

Reasoning

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.

p. 3
02

Whether the letter, if produced, would have affected the result of the suit

Holding

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.

Reasoning

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.

p. 3
03

Whether the respondent withheld the letter from the superior court

Holding

The contention does not arise; a party is under no obligation to provide evidence supporting its opponent's case.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application to admit additional evidence on appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
majority
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

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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

p. 3

Costs

The application is dismissed with costs to the respondent.

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.

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.
p. 2Test for admission of additional evidence on appeal
We are of the view that with just a little diligence, the letter in issue would have been made available to the trial court.
p. 3Failure of reasonable diligence
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.
p. 3Disposition - dismissal of the application

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, "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.