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Court of AppealDismissedCivil Appeal No. 201 of 2013

Kiliswa v The Independent Elections And Boundaries Commission & 2 others (Civil Appeal 201 of 2013) [2014] KECA 807 (KLR)

Court of Appeal of Kenya
28 February 2014
RNR. N. NambuyeGKG. B. M. KariukiWilliam OukoW. Ouko
3,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to let an appellant introduce new evidence she could have used earlier, confirming judicial review appeals cannot use Rule 29.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Nambuye, G.B.M. Kariuki and Ouko, JJ.A.) disposed of a notice of motion dated 14 October 2013 by which the appellant, Peninah Nandako Kiliswa, sought leave to adduce additional evidence in her appeal against a High Court judicial review decision. The dispute concerned Ford Kenya's gender top-up nomination list for Bungoma County under Article 177(1)(b) of the Constitution; the appellant claimed she had erroneously annexed an affidavit relating to Turkana County instead of Bungoma County, and wished to introduce the correct document, with summonses for the deponent and two advocates. The respondents opposed, contending that rule 29 of the Court of Appeal Rules did not apply, that the application was late, and that counsel's admitted oversight was negligence, not sufficient reason. The court framed two issues: the competence of the application and whether sufficient grounds existed. It held that rule 29 applies only to appeals from the High Court's original jurisdiction; judicial review proceedings are supervisory and akin to an appeal, so the rule was inapplicable and the application was flawed. Alternatively, applying the Tarmohamed v Lakhani and Ladd v Marshall principles and this Court's decision in Mzee Wanjie v Saikwa, the evidence was available at all material times and the appellant failed to act with reasonable diligence. The court also observed that arrest of judgment is alien to Kenyan civil practice and that after delivery of judgment the court is functus officio. The motion was dismissed with costs. The High Court decision itself was not disturbed, as the appeal remained pending.

Questions the Court framed

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

  1. 1.Whether the application for adduction of additional evidence is competent, i.e. whether rule 29(1) of the Court of Appeal Rules applies where the appeal is from a decision of the High Court in judicial review (supervisory/appellate rather than original jurisdiction)
  2. 2.Whether sufficient grounds have been shown for the Court to allow adduction of additional evidence on appeal

Key legal issues

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01

Applicability of rule 29(1) of the Court of Appeal Rules to judicial review appeals

Holding

Rule 29(1) does not apply; judicial review is a supervisory, not original, jurisdiction, so the application premised on the rule is incompetent.

Reasoning

The court accepted counsel's submission that the High Court, in determining the judicial review application, was reviewing a decision already made by IEBC rather than hearing a matter first instance. Relying on Black's Law Dictionary definitions of original and appellate jurisdiction, it held the judicial review proceedings were akin to an appeal, so the High Court's decision was not made in its original jurisdiction and rule 29 was inapplicable.

p. 4
02

Whether sufficient grounds existed to admit additional evidence on appeal

Holding

No; even if rule 29 applied, the appellant failed the established criteria for adduction of additional evidence.

Reasoning

The court restated the Tarmohamed v Lakhani and Ladd v Marshall principles and the two-limb test in Mzee Wanjie v Saikwa. The evidence sought was available at all material times; the appellant admitted annexing the wrong document through oversight, which was negligence amounting to no sufficient reason; she was bound by her pleadings and could have sought to adduce the evidence before the High Court delivered judgment but did not.

p. 5
03

The concept of arresting judgment in Kenyan civil jurisprudence

Holding

Arrest of judgment is alien to Kenyan civil procedure; after delivery of judgment the court is functus officio.

Reasoning

The court, drawing on the Nigerian Supreme Court decision in Usikaro v Itsekiri Land Trustees and Musdapher JCA's lead judgment, explained that arresting judgment is a common-law device hardly known in modern civil practice in Kenya. Before judgment there is nothing to arrest; after judgment, the court is functus officio. A party's remedy must be sought timeously before judgment.

p. 4

Legal principles established

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  • Rule 29 of the Court of Appeal Rules governs adduction of additional evidence only where the appeal is from a decision of the High Court acting in its original jurisdiction; judicial review decisions are made in the High Court's supervisory or appellate jurisdiction and fall outside the rule.
  • Additional evidence may be admitted on appeal only sparingly and with great caution: it must not have been obtainable with reasonable diligence at the trial, it would probably have an important influence on the result, and it must be apparently credible; an exception exists where the application is premised on fraud or surprise.
  • Once judgment is delivered, the court is functus officio and there is no power to arrest or reopen the judgment; a party must seek appropriate relief before delivery of judgment.

Court orders

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  1. 1.Dismissal with costs of the appellant's notice of motion dated 14th October 2013 seeking leave to adduce additional evidence

The bench

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

RN
majority

Wrote the judgment

GK
majority
William Ouko
W. OukoJA
Currently serving
majority
On appeal from
High Court of Kenya at Nairobi
J.R. No. 223 of 2013
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act; application made under rule 29(1) of the Court of Appeal Rules with reliance on Section 1(1) of the Appellate Jurisdiction Act for inherent power

Relief refused

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Leave to adduce additional evidence (the correct Ford Kenya affidavit relating to Bungoma County) on appeal

Rule 29 applies only to appeals from the High Court's original jurisdiction, and in any event the evidence was available at the trial and the party failed to act with reasonable diligence; the evidence did not meet the Tarmohamed/Ladd v Marshall criteria

p. 5

Summonses to compel attendance of Eseli Simiyu, Annie W. Thoronjo and E. Wafula

Ancillary to the dismissed application for adduction of additional evidence

Costs

The application was dismissed with costs to the respondents.

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.

Accordingly, the application for adduction of additional evidence premised as it is on the rule, is flawed. This answers the first issue.
p. 4Inapplicability of rule 29 to judicial review appeals
For these reasons we dismiss with costs the appellant's notice of motion dated 14th October 2013.
p. 5Final orders - dismissal of the application
except on grounds of fraud or surprise, the general rule is that an appellate Court will not admit fresh evidence unless it was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available.
p. 4Principles governing additional evidence on appeal (K. Tarmohamed v Lakhani)
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 believe, or in other words, it must be apparently credible though it need not be incontrovertible.
p. 5Ladd v Marshall conditions for receiving fresh evidence
The policy of the Court is that power to call additional evidence is required to be exercised very sparingly and with great caution.
p. 4Sparing exercise of the power to admit additional evidence

Issues in the judgment

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minor

The judgment states the appellant lodged the record of appeal on 15.08.2013 but elsewhere gives the year as 22.10.2010 for the Amended Record of Appeal, which is chronologically inconsistent with the 2013 appeal.

minor

In discussing the Newswalih Communications case, the judgment appears to splice the facts of the present case into the Nigerian authority's narrative, stating of the Supreme Court of Nigeria case: "She has not offered any or any sufficient explanation why she did not do so. She waited for judgment to be delivered by the High Court and then proceeded to give notice of appeal on 18.7.2013" - these are the appellant's dates in the Kenyan appeal, not the Nigerian case's.

minor

The judgment renders 'functus officio' as 'factus officio' in the passage on arresting judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kiliswa v The Independent Elections And Boundaries Commission & 2 others (Civil Appeal 201 of 2013) [2014] KECA 807 (KLR)", Case Analysis (2014). Civil Appeal No. 201 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/807/eng@2014-02-28

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