Eri Limited v Equitorial Commercial Bank (formerly Southern Credit Banking Corporation) Limited & 1 other
The bottom line
#Kenya's Court of Appeal refused to let a losing party add new evidence on appeal, confirming fresh evidence is admitted only sparingly and when truly relevant.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter from the Land Registrar, Kisumu met the criteria for admission as additional evidence under Rule 29(1)(b)
The application fails because the proposed evidence is not relevant to the issue in the substantive appeal. The appeal concerns whether the trial court properly exercised its discretion in striking out the suit as time-barred, res judicata and an abuse of process; the letter concerns the existence of transfer records and the validity of title, matters not before the trial court on that ruling.
The court restated the Wanje/Ladd v Marshall principles: diligence, importance to the result and credibility, plus the caution that the rule is not a device to patch weak points or fill gaps. Even assuming the letter were credible, it does not address whether the Judge properly exercised his discretion, so its introduction would not advance the appeal. The respondents also showed the information was neither new nor previously unavailable, and the appellant offered no adequate explanation for the delay in obtaining it.
The applicable standard for interfering with a trial court's exercise of discretion on the substantive appeal
A first appellate court will interfere with the exercise of the trial court's judicial discretion only where the trial court misdirected itself, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or its decision was plainly wrong (Mrao Ltd v First American Bank of Kenya Ltd).
The court identified the main question in the substantive appeal as whether the High Court properly exercised its discretion in striking out the suit on grounds of limitation, res judicata and abuse of process, and adopted the Mrao formulation of the grounds for appellate interference with discretionary decisions. This framed the relevance inquiry: evidence must speak to that discretion question to be admissible under Rule 29(1)(b).
Legal principles established
#- The principles in Ladd v Marshall, as adopted in Mzee Wanje v A K Saikwa, govern the exercise of the Court of Appeal's discretion under Rule 29(1)(b) to admit additional evidence: the evidence could not with reasonable diligence have been obtained for use at trial, it would probably have an important influence on the result, and it must be apparently credible; and the power must be exercised sparingly and with great caution.
- Additional evidence will not be admitted on appeal where it does not speak to the question arising in the appeal; evidence irrelevant to whether the trial court properly exercised its discretion in striking out a suit will be excluded.
Court orders
#- 1.The appellant's application by notice of motion dated 13th December, 2017 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court at Kisumu
- ELC Case No. 269 of 2017
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eri Limited v Equitorial Commercial Bank (formerly Southern Credit Banking Corporation) Limited & 1 other", Case Analysis (2019). Civil Appeal No 122 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/742/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.