Chege v Attorney General & 8 others (Civil Appeal (Application) 27 of 2019) [2024] KECA 1529 (KLR)
The bottom line
#Kenya's Court of Appeal refused to admit new evidence on appeal because the applicant waited nearly two years after discovering it without explaining the delay.
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 applicant should be granted leave to adduce additional evidence on appeal under Rule 31 of the Court of Appeal Rules 2022
- 2.Whether the applicant explained the delay in filing the application
- 3.Whether the applicant invoked the correct statutory framework for the application
Key legal issues
#Threshold for admission of additional evidence on appeal
The applicant failed to satisfy the Rule 31 / Ladd v Marshall criteria: the evidence could have been obtained earlier, the delay was unexplained, and the influence of the evidence on the appeal was not established with precision.
The court restated the three-pronged test from Mzee Wanje v Saikwa and Criticos: the evidence must not have been obtainable with reasonable diligence at trial, it must probably have an important influence on the case, and it must be credible. The two letters were received by the applicant's advocates in 2019 and 2020, yet the application was filed in April 2022 with no explanation for the delay, nor any statement of when negotiations concluded. Additionally, the applicant could not specify precisely how the evidence would influence the determination of the dispute.
Improper invocation of the Civil Procedure Act before the Court of Appeal
It was improper for the applicant to invoke sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules in an application before the Court of Appeal, whose jurisdiction flows solely from the Appellate Jurisdiction Act and its Rules.
The court emphasised that its jurisdiction is derived exclusively from the Appellate Jurisdiction Act and the Rules made thereunder, in this case Rule 31 of the Court of Appeal Rules 2022. The Civil Procedure Act and the rules established under it do not bind the Court, so invoking those provisions in the application was improper, even though the application was ultimately dismissed on its merits under the correct Rule 31 threshold.
Legal principles established
#- Applications for additional evidence on appeal are governed by Rule 31 of the Court of Appeal Rules 2022, applying the Ladd v Marshall principles: due diligence, important influence on the case, and credibility of the evidence.
- Additional evidence is not a remedy for an indolent litigant; a party must move with speed upon discovery of the evidence.
- The Court of Appeal's jurisdiction derives only from the Appellate Jurisdiction Act and its Rules; the Civil Procedure Act and its rules do not bind the Court and should not be invoked in applications to it.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nakuru
- Nakuru ELC Constitutional Petition No. 20 of 2014
- Jurisdiction invoked
- Appellate Jurisdiction Act and Rule 31 of the Court of Appeal Rules 2022
Relief refused
#Leave to adduce additional evidence (letters dated 16th September 2019 and 8th October 2020)
The applicant did not explain the delay of almost two years since the documents came to his attention, and did not establish the influence the evidence would have on the appeal.
Costs
Dismissed with no orders as to costs
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.
it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial
the evidence must be such that, if given, it would probably have an important infiuence on the rest of the case, though it need not be decisive
The upshot of our above analysis is that the application lacks merit. It is dismissed but with no orders as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Attorney General & 8 others (Civil Appeal (Application) 27 of 2019) [2024] KECA 1529 (KLR)", Case Analysis (2024). Not stated in the extract (application within an appeal from Nakuru ELC Constitutional Petition No. 20 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1529/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.