Introduction
1. Through the notice of motion application dated 3rd July 2024, the appellant/applicant seeks leave to adduce further evidence during hearing of his appeal.
2. As can be discerned from the grounds on the face of the application and the affidavit sworn in support, the application is premised on the grounds that owing to difficulties and/or inadvertence, the applicant was unable to produce certain documents that were crucial to his case during hearing/trial of the case.
3. Contending that no prejudice, loss or harm will be occasioned on the respondent if the application is allowed, the applicant urges the court to allow the application.
4. In reply and opposition to the application, the respondent’s counsel, through the replying affidavit she swore on 17th December 2024, has inter alia deponed that the applicant has not demonstrated that the evidence he intends to adduce during appeal could not, with exercise of due diligence, be obtained and produced before or during trial.
5. Terming the application an attempt by the applicant to fill the gaps in his case, the respondent’s counsel contends that allowing the application would be prejudicial to the respondent as the respondent would not be able to respond to the new evidence. It would also be prejudicial to the respondent in that it would be tantamount to re-opening the applicant’s case long after pleadings closed.
6. Pursuant to directions given on 17th December 2024, the application was disposed off by way of written submissions.
7. At the time of writing this ruling, the applicant had not filed submissions and if he had, they were not placed in the court file.
Respondents Submissions
8. In his submissions filed on 21st January 2025, the respondent has reiterated her contention that the additional evidence is an afterthought and an attempt by the applicant to patch up his case on appeal to his detriment. The respondent makes reference to Section 78(1)(d) of the Civil Procedure Act and the decisions in the cases of Mohamed Abdi Mahamud v Ahmed abdullahi Mohamed & 3 others (2018)e KLR (Supreme Court of Kenya decision) and Tahmohamed & another v Lakhani & Company (1958)EA 567 and submits that the applicant has not satisfied the conditions for being granted the order sought.
9. The respondent asserts his contention that the application is an afterthought and an attempt by the applicant (unsuccesful litigant) to make a fresh case on appeal by filling up omissions and patching up weak points in his case.
10. In view of the foregoing, the respondent urges the court to dismiss the application with costs to him.
Analysis and determination
11. I have carefully read and considered the application, the grounds advanced in support thereof and the reasons given in opposition to the applications. I have also read and considered the written submissions by the respondent.
12. I find the sole issue for the court’s determination to be is whether the applicant has made up a case for being granted leave to adduce additional evidence during hearing of the appeal.
13. To be granted the order sought, the applicant has to meet the conditions set in the case of Mohamed Abdi Mahamud v Ahmed abdullahi Mohamed & 3 others supra. These are:-
a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
b) It must be such that, if given, it would influence or impact upon the result of verdict, although it need not be decisive;
c) It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;
e) The evidence must be credible in the sense that it is capable of belief;
f) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
g) Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;
h) Where the additional evidence discloses a strong prima facie case of wilful deception of the Court;
i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.
j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
14. As to whether the applicant has satisfied those conditions, whilst the applicant claims that he was prevented from adducing the evidence by difficulties and/or inability to obtain those documents before or during hearing of the case, no evidence whatsoever has been produced to show that the applicant made any efforts to obtain that evidence either before filing the suit or during the hearing of the case. I also note that one of the grounds taken up for failure to produce the document in evidence is inadvertence in including the documents in the applicant’s list of documents. The two explanations cannot be used in support of the applicant’s case as they are mutually exclusive. Whilst the former explanation presupposes the applicant was unable to obtain the documents owing to difficulties obtained the documents, the latter presupposes that the documents were available but owing to inadvertence on the part of the applicant, the documents were not included in the applicants list of documents and therefore were not produced in evidence.
15. If the applicant had difficulties in obtaining the documents, that fact would have been raised with the trial court as the reason for failure to produce the document in court. That did not happen. The only reasonable inference that can be drawn from the conduct of the applicant is that he had no intention at all of producing or relying on the documents in evidence.
16. I agree with the respondent’s contention/ submission that the applicant has not demonstrated that the documents intended to be produced in evidence during appeal could not be produced during trial. No evidence has been produced by the applicant capable of showing that the additional evidence intended to be adduced during appeal could not with exercise of due diligence be produced in evidence during trial.
17. I agree with the respondent that the instant application is an attempt by the applicant to fill gaps in his case in the lower court and/or to reopen his case with a view of filling gaps at appeal. The power of the court to allow adduction of evidence during appeal was not meant to assist a litigant in the position or condition of the applicant herein.
18. The upshot of the foregoing is that the applicant has not made up a case for being granted the order sought. Consequently, I dismiss his application dated 3rd July 2024 with costs to the respondent.
19. Orders accordingly.
Dated, signed and delivered at Kabarnet this 18th day of February, 2025.
Ruling delivered Virtually in the presence of:
- Ms. Mokoit for the Applicant.
- Mr. Kemboi for the Respondent.
- Court Assistant: Ian