Diana Kethi Kilonzo v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let Kethi Kilonzo introduce new evidence on appeal because she could have gathered it earlier during her case.
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 Court's discretion under Rule 29 can be invoked in an appeal arising from the High Court's supervisory rather than original jurisdiction
- 2.Whether the additional evidence sought could have been obtained with reasonable diligence for use before the Committee and the High Court
- 3.Whether the additional evidence is relevant and necessary for the just and proper determination of the appeal
- 4.Whether Article 159(2)(d) of the Constitution can be invoked to override the restrictions in Rule 29
Key legal issues
#Scope of Rule 29 applications for additional evidence
The Ladd v Marshall conditions apply: the evidence could not have been obtained with reasonable diligence, it would probably have an important (though not decisive) influence, and it must be apparently credible. Admission is discretionary, case-specific, and reserved for exceptional circumstances.
The Court traced a long line of authority from K. Tarmohamed v Lakhani through Wanje v Saikwa to recent decisions, holding that the rule exists to prevent litigants from patching up weak cases on appeal and must be exercised sparingly and with great caution.
Whether the evidence sought was in fact new
Most of the evidence sought, including the green books and registration booklet, was produced and considered by the Committee, with cross-examination; it was not fresh evidence at all.
The Court found it curious that the applicant claimed the three green books had come to light after the decisions, since they were perused by the Committee in the presence of the parties, and her own counsel's letters and the wording of her prayers confirmed the materials were before the Committee.
Due diligence
The applicant knew of the evidence during the Committee and High Court proceedings but never sought it then; she only moved to access it after the hearings, for the purposes of lodging an appeal.
The applicant filed HCCC No. 400 of 2013 only on 5th August 2013, weeks after both decisions, which demonstrated the evidence was available and its pursuit was appeal-motivated rather than driven by the litigation below.
Relevance of the evidence sought
Much of the material sought, such as acknowledgement slips from all 290 constituencies, was irrelevant to the appeal issues, which concerned Langata Constituency and the fairness of the Committee's hearing.
The Court held that determining the grounds in the memorandum of appeal did not require production of hordes of election materials from all constituencies, and that the application read more like a discovery request than a Rule 29 prayer.
Article 159(2)(d) and procedural rules
Article 159(2)(d) does not permit disregard of procedural rules; regard may be omitted only where no prejudice to the other party or undermining of constitutional values results.
Adopting the reasoning in Robert Mwangi Njoroge v Republic and Moses Odero Owour v Andronico Otieno Anindo, the Court held rules of procedure guarantee equality, fairness and expeditious disposal and cannot be negated wholesale under Article 159.
Original versus supervisory jurisdiction of the High Court
The Court declined to decide whether Rule 29 was unavailable because the appeal arose from the High Court's supervisory jurisdiction, reserving the question for the substantive appeal.
Noting that Rule 29 permits additional evidence only in appeals from the High Court's original jurisdiction, the Court nonetheless refrained from expressing a view on the character of the jurisdiction exercised, since the issue was substantive in the pending appeal.
Legal principles established
#- Rule 29 of the Court of Appeal Rules permits adduction of additional evidence only in appeals from the exercise of the original jurisdiction of the High Court, and then only where the Ladd v Marshall conditions are satisfied.
- Additional evidence on appeal is admitted only in exceptional circumstances and not to patch up weaknesses in a case.
- Article 159(2)(d) of the Constitution does not displace rules of procedure; it only requires that procedure not be applied where it would prejudice the opposite party or undermine constitutional values.
Court orders
#- 1.The Notice of Motion dated 18th February, 2014 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 359 of 2013
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules (application to admit additional evidence in an appeal), in an appeal from the High Court's constitutional jurisdiction under Article 165 of the Constitution
Relief refused
#Leave to adduce additional evidence (reports, acknowledgement slip booklets, inventories and distribution lists) on the hearing of Civil Appeal 309 of 2013
The evidence was before the Committee and considered by it; it could have been obtained with due diligence; and much of it was irrelevant to the issues in the appeal
Costs
The application is dismissed with costs to the respondents.
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.
To justify reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
The rule does not authorise the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence.
rule 29 allows for adduction of additional evidence only in appeals from the exercise of the original jurisdiction of the High Court.
Article 159 was never intended to do away with rules of procedure in the administration of justice.
In the event, we do not find any merit in the Motion date 18th February, 2014 and accordingly the same is hereby dismissed with costs to the respondents.
Issues in the judgment
#The judgment cites Karmali Tarmohamed & Another v I H Lakhani & Co Ltd as (1958) EA 367 but later as K. Tarmohamed & Another v Lakhani & Co (1958) EA 567 - the same 1958 authority appears with two different citations in the same judgment.
The name of the third judge is spelled 'M'INOTI' in the coram but 'K. M'INOT' in the signature block.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rahab Njeri Kaguthi v Meas Agricultural Centre Limited [2019] KEELRC 1728 (KLR)[2019] KEELRC 1728 (KLR)25 Apr 2019distinguished
Cite this brief
#Cite this brief
Caselaw, "Diana Kethi Kilonzo v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 353 (KLR)", Case Analysis (2014). Civil Appeal (Application) No 309 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/353/eng@2014-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.