Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd & 13 others [2011] KECA 130 (KLR)
The bottom line
#Kenya's Court of Appeal allowed new evidence about deceased respondents to be added in an appeal, clarifying when courts accept fresh evidence.
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 applicants should be permitted to adduce additional evidence from the 1st and 2nd respondents in the appeal
- 2.Whether the evidence sought could have been obtained with reasonable diligence for use at the trial
- 3.Whether the evidence sought is weighty, credible and would have an important influence on the result of the appeal
Key legal issues
#Test for admission of additional evidence on appeal under rule 29(1)(b) of the Court of Appeal Rules
The court applies the three-pronged test from Mzee Wanjie v Saikwa: reasonable diligence, important (not necessarily decisive) influence on the result, and apparent credibility.
The court restated the principles from Mzee Wanjie & 93 Others v Saikwa, as applied in Edgar Ogechi and Karmali Mohamed v Z.H. Lakhani. The applicant must show the evidence could not have been obtained with reasonable diligence for use at the trial; that it would probably have an important influence on the result though it need not be decisive; and that it is apparently credible though not incontrovertible. The court was satisfied the death of several respondents, occurring after the 2002 review hearing, met all three limbs.
Relevance of abatement against deceased respondents to the additional evidence application
Evidence that several respondents died without substitution was admissible additional evidence, as it would bear on whether the appeal abated against them.
The proposed evidence would show that the 4th, 6th, 7th, 10th, 11th and 12th respondents were deceased and no substitution applications had been made, meaning the appeal might have abated as against them, they having died more than 12 months earlier. Because they died after the review application was heard and determined in 2002, this evidence was unobtainable with reasonable diligence at that time.
Application of the overriding objective to additional evidence applications
The overriding objective reinforced the conclusion that the additional evidence should be admitted.
Beyond the three Wanjie principles, the court invoked the overriding objective, finding that its invocation in the circumstances led to the same conclusion, i.e. admission of the additional evidence. This grounds the admission independently in the court's duty to facilitate the just and expeditious disposal of litigation.
Legal principles established
#- The power of the Court of Appeal to receive further evidence is discretionary and is exercised on three broad principles: reasonable diligence, important influence on the result, and apparent credibility of the evidence.
- Evidence of events occurring after the hearing and determination of the matter below, which could not with reasonable diligence have been obtained earlier, may properly be admitted as additional evidence on appeal.
Court orders
#- 1.The application is allowed and the applicants are permitted to adduce additional evidence in the appeal
- 2.The additional evidence will be taken before the High Court of Kenya at Nairobi
- 3.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No 5261 of 1988
- Jurisdiction invoked
- Rules 29(1)(b), 31 and 42 of the Court of Appeal Rules
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.
in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.
(2)The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive
For the aforegoing reasons, we allow the application and permit the applicants to adduce additional evidence in this appeal. This will be done before the High Court of Kenya at Nairobi. Costs shall be in the appeal.
Issues in the judgment
#The judgment is headed 'RULING OF THE COURT' and captioned as an appeal/application, yet it disposes only of an interlocutory application for additional evidence, not the appeal itself; the decision below (Ole Keiwua J's ruling of 5 December 1997) is not reviewed on the merits.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd & 13 others [2011] KECA 130 (KLR)", Case Analysis (2011). Civil Appeal/Application No 8 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/130/eng@2011-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.