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Court of AppealAllowedCivil Appeal (Application) No. 93 of 2016

Tana and Athi River Development Authority v County Government of Tana River & another [2018] KECA 296 (KLR)

Court of Appeal of Kenya
20 September 2018
1,698 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 allowed a party to introduce new documents on appeal, showing courts will bend the rules where evidence was genuinely unavailable at trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa (Waki, Visram and Karanja, JJ.A) on an application under Rule 29(1)(b) of the Court of Appeal Rules by Tana and Athi River Development Authority for leave to adduce additional evidence in an appeal against the judgment of Angote, J. of the Environment and Land Court at Malindi. The High Court had declared that the allocation of L.R. No. 28026 to the appellant contravened Articles 10, 40 and 56 of the Constitution, revoked the grant of the land, issued a permanent injunction, and awarded costs to the County Government of Tana River. The appellant sought to introduce correspondences and minutes obtained from the Attorney General, arising from an earlier suit (H.C.C.C. No. 660 of 1994), which it claimed were lost in a 1997 office relocation. Applying the Mzee Wanjie/Ladd v Marshall principles, the court held the documents could not have been obtained with due diligence at trial - given the 18-year lapse and the Attorney General's non-joinder - that they were material to the just determination of the dispute, and that the application must be considered independently of the merits of the appeal. The application was allowed and the documents at pages 230 to 270 of the record admitted as additional evidence, with the appeal still pending; costs of the application were awarded to the 1st respondent. This ruling binds subordinate tribunals on the principles governing additional evidence on appeal.

Questions the Court framed

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

  1. 1.Whether the evidence sought to be adduced could not have been obtained with reasonable diligence for use at the trial
  2. 2.Whether the additional evidence would probably have an important influence on the result of the appeal
  3. 3.Whether the evidence is apparently credible such that the discretion to admit it should be exercised

Key legal issues

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01

Whether the appellant demonstrated that the documents could not be obtained with due diligence at trial

Holding

The court gave the appellant the benefit of the doubt: the documents were held by the Attorney General, who was not a party to the suit, and 18 years had elapsed since the documents were lost in an office relocation.

Reasoning

The Managing Director deposed that the documents from H.C.C.C. No. 660 of 1994 were lost when the appellant moved offices in 1997, and that the Attorney General could not produce them because he was not joined as a party to the petition. The lapse of 18 years between the earlier suit and the petition supported the conclusion that due diligence had been exercised.

p. 3
02

Whether the evidence is material and credible enough to be admitted

Holding

Having perused the documents, the court found them material to the just determination of the dispute and admitted them.

Reasoning

The court applied the Mzee Wanjie/Ladd v Marshall principles, noting the documents comprised correspondences and minutes showing the status of the land as government or Trust land and compensation, were within the 1st respondent's knowledge, and were relevant to the two main grounds on which the judgment below rested.

p. 3

Legal principles established

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  • An appellate court in a civil case admits additional evidence only where it could not have been obtained with reasonable diligence, it would probably have an important influence on the result, and it is apparently credible.
  • In an application to introduce additional evidence on appeal, the court must not deal with the merits of the appeal, which is independent of the application.
  • The power to receive further evidence is exercised sparingly and not to enable a party to patch up weaknesses or fill gaps in its case on appeal.

Court orders

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  1. 1.The application for leave to adduce additional evidence is allowed
  2. 2.The documents attached by the appellant from page 230 to 270 of the record of appeal are admitted as additional evidence
  3. 3.The 1st respondent is awarded the costs of the application

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court at Malindi
Petition No. 2 of 2015
Jurisdiction invoked
Rule 29(1)(b) of the Court of Appeal Rules (interlocutory application for leave to adduce additional evidence in a pending appeal)

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.

We hereby allow the application and admit the documents attached by the appellant from page 230 to 270 of the record of appeal as additional evidence. The 1st respondent shall have costs of this application.
p. 3Final orders admitting the additional evidence
the bench seized of application must not deal with the merit of the appeal as the appeal and the application are independent of each other.
p. 2Additional evidence applications determined independently of the appeal merits
There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence.
p. 3Caution in admitting additional evidence

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, "Tana and Athi River Development Authority v County Government of Tana River & another [2018] KECA 296 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 93 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/296/eng@2018-09-20

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