1. The appellant filed the amended memorandum of appeal dated 26.7.24 challenging the judgment of W. C Keter (small Claims Adjudicator ) dated 29.4.24 .
2. The appellant later filed the application dated 13.11.24 seeking leave to file /adduce additional evidence herein. The same is based on the grounds that the claim was filed on 26.2.24 and the applicant filed a notice of preliminary objection dated 11.3.24 which was heard and dismissed on 21.3.24 the same proceeded for hearing on 15.4.24 and 24.4.24 and judgment was delivered on . 29.4.24. Also that his insurers proceeded with investigations which were completed on 15.4.24 and a report filed. He also stated the investigations revealed that the documents relied on by the respondent were falsified . Further that the said information could not be adduced without undue delay an that no prejudice would be occasioned to the respondents and the application was filed without unreasonable delay and in good faith . He further stated that allowing the additional evidence will assist the court in the determination of the issues herein. She also filed a supporting affidavit dated 13.11.24 deponing to the facts of the case while reiterating the grounds stated above .
3. The applicant submitted that this court has jurisdiction to grant the orders sought under the provisions of section 78(1) (d) of the Civil Procedure Act and that the procedural law is Order 42 Rule 27 of the Civil Procedure Rules.
4. Also that Section 78 (1) provides that “subject to such conditions and limitations as may be prescribed, an appellate Court shall have power:
To determine case finally;
To remand a case;
To frame issues and refer them for trial;
To take additional evidence or to require the evidence to be taken;
To order a new trial”
5. Also that the other hand, Order 42 Rule 27 of the Civil Procedure Rules provides that:
“the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Court to which the appeal is preferred; but if
The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.
The Court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined
(2) wherever additional evidence is allowed to be produced by the Court to which the appeal is preferred the Court shall record the reason for its admission.”
6. The Applicant will be rely on the case of Kenya Agricultural and Livestock Research Organization v Leah Okoko & another [2022] eKLR which quoted with approval the Supreme Court in Mohammed Abdi Mohamud vs. Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR which the said case laid down the following principles for allowing additional evidence as follows:
79. “…We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
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 the 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;
k. The court will consider the proportionally and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
6. The applicant told this court that the trial court proceeded with the hearing on the 15th day of April 2024 and the 24th day of April 2024 respectively notwithstanding, the fact that the Appellant had not fully complied with Order 11 of the Civil Procedure Rules, 2010 as he had not obtained the requisite documents to mount a proper defence. For clarity, the Appellant had requested the Respondent to undergo a 2nd medical examination, and had further instructed its investigators to carry out investigations and verify the genuineness of the accident and the medical documents filed by the Respondent.
8. Applicant submitted that the investigations report that the
Appellant seeks to file and rely on could not have been obtained by the Appellant with reasonable diligence for use at the time trial, as same was not within his knowledge thus same could not have been produced at the time of the suit. For avoidance of doubt, the above material and information only came to the attention and knowledge of the Appellant and his insurer on or about the 15th day of July 2024 when the matter had already proceeded for hearing and judgment entered on the 29th April 2024.
9. Also that the said report forms part of applicant’s main argument in the Appeal that the small claims court is unsuited to handle compensation of personal injuries for reasons that in such claims, there is need to have a more thorough review of medical evidence, including having a second medical examination; investigations to determine the genuineness of the accident and the documents and the calling of expert witnesses. Thus, to be able to fully and properly defend such claims, 60 days will definitely be insufficient. On the other hand, the Applicant is aware of the rules and procedure of the court and is especially alive to the fact that the Report dated 15th July 2024 cannot be lodged in court neither can the intended witness testify without first seeking and obtaining leave of this Honourable. Be that as it may, the Witness and document sought to be added by the Plaintiff/Applicant seek to confirm the averments contained in Response to Statement of Claim dated 8th April 2024.
10. Further that the intended addition of witness and documents is calculated to bring on board all the witnesses and/or evidence in regards to the issues in controversy, to warrant an effective and effectual determination once and
That the evidence of the intended witness (if admitted) would be important to influence the result of the dispute before Court and for avoidance of doubt, the Investigation Report establishes and/or confirms that the documents filed in court and relied upon by the Respondent were inauthentic and falsified and that the unknown motorbike carrying the Respondent herein was to blame for the accident as it rammed the Appellant’s vehicle from behind.
11. It was submitted that the Respondent shall not suffer any prejudice as same will equally be granted an opportunity and/or chance to cross-examine the intended additional witnesses, if need be.
12. It was also argued that the mandate of this Honorable Court, is to hear parties on merit, and thereafter pronounce it’s self on the issues ventilated by the parties and not to punish parties by denying them their right to be heard. Also that the court had a duty to administer substantive justice as underscored by the provisions of Article 159(2)(b)(d) of the Kenyan Constitution 2010.
13. The Appellant/Applicant also relied on the decision in Kenya Agricultural and Livestock Research Organization ( Supra) where Justice Aburili held that ,
“ As to whether the additional evidence herein could have been adduced before the trial court, I note that the necessity of adducing the said evidence arises in response to the grounds of appeals raised by the respondent in its memorandum of appeal specifically paragraph 2, 3, 4 and 7.I further observe that the evidence in question was adduced during submissions.
In my view, the additional evidence sought to be adduced is directly relevant to the matter before the court and it is in the interest of justice to have the same adduced.
Further, the adduction of such evidence will give the appellant the opportunity to rebut or respondent to the same hence no prejudice will be suffered by the appellant if the application herein is allowed.”
14. In response to the application , the respondent filed the replying affidavit dated 7.1.24 in which she vehemently opposed the application deponed that the application was filed with utmost delay as the claim was filed on 12.2.24 and the applicant filed a preliminary objection instead of pursuing he report and that judgment was entered in her favour on 29.4.24 and the applicant gave instructions on the report on 4.6.24 and hence the orders sought are not warranted as they aim at delaying further progress in the lower court case. She said that the said additional evidence will not assist this court in determining the issues and it not credible Also that the reasons for the delay have not been explained and that she will be prejudiced by the orders sought herein as she will not get an opportunity to effectively respond to the issues herein .
15. The respondent submitted that the issue for determination is whether the applicant has laid down a good case for allowing new and compelling evidence under Article 50 (6) of the constitution. He cited the cases of Ladd Vs Marshall (1954) 3 All ER 745 at 148 Skone vs Skone(1971), 2All ER 582 at 586; LangdaleVs Danby (1982) 3ALL ER. 129 at 137; Sadrudin Sharin vs Tarlochan Singh (1961) EA.72, Elgood 274; American Express International Vs Atulkimar S. Patel, Application No.8B, of 1986 (SCU) (unreported); Karmali Vs Lakhani (1958), EA.567 and Corbett (1953), 2 ALL ER, 69. Where it was held that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:
(i) Discovery of new and important matters of evidence which, after the exercise of due diligence, 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;
(ii) It must be evidence relevant to the issues;
(iii) It must be evidence which is credible in the sense that it is capable of belief;
(iv) The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;
(v) The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given;
The Application to admit additional evidence must be brought without undue delay.
Further that litigation must come to an end and that the discretion to allow application to adduce new or additional evidence should be exercised sparingly where a case has been concluded .
Also that in the case of Kibos Sugaar & Allied Industries Limited & Another v Benson Ambuti Adega & 6 Others, Civil Appeal (Application) No. 153 of 2019 (unreported) the court quoted with approval the English case of The National Guild of Removers & Storers Limited v Bee Moved Limited & Others (2018) EWCA Civ. 1302 that:
"In determining whether an appellate court can admit additional evidence, the court must seek to give effect to the overriding objective of doing justice and, in doing so, attempt to strike a fair balance between the need for concluded litigation to be determinative of disputes and th desirability that the judicial process should achieve the right result."
12. The respondent told this court that the investigations were conducted from 4th June 2024 after the delivery of judgment on 29th April in the presence of the Appellant and Respondents advocate and that they should have issued instructions for the report before the close of pleadings to afford the her a chance to rebut the evidence.
I1. It was further submitted that the Respondent will be prejudiced by the admission of' new evidence at this stage as they prosecuted their case in the trial Court timeously, and the Appellant had a chance to make the instant application in the lower court in the lower court but instead resorted to apply delaying tactics.
13. The respondent urged this court to find that compelling the him to go through another fact-finding trial will be unjust.
14. Appellant and Respondents advocate. In the event the Appellant were intending to call for the report, they should have done the same before close of pleadings to afford the Respondent a chance to rebut the evidence.
15. In the end the respondent urged this court to find that the said additional evidence is not credible and not merited as the instructions for the report were issued upon the delivery of judgment showing clearly that the Appellants are on fact finding mission and trying to delay the matter and deny the respondent from enjoying the fruits of her judgment through filing of this application .
16. I have carefully considered the application the response and the rival submissions by the parties herein. It is not disputed that the threshold for allowing additional evidence was laid down in the case of ;
17. Mohammed Abdi Mohamud vs. Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR which the said case laid down the following principles for allowing additional evidence as follows:
79. “…We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
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 the 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;
k. The court will consider the proportionally and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
18. The issues for determination herein are therefore as follows ;
a. whether the additional evidence directly relevant to the matter before the court and is in the interest of justice.
b. whether the additional evidence directly relevant to the matter before the court and is in the interest of justice, the applicant said the evidence is on the causation of the accident and thus relevant herein and it is in the interest of justice that the same be allowed.
c. Whether the additional evidence will influence or impact upon the result of the verdict.
d. Whether the evidence 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.
e. Whether 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.
f. Whether the evidence is credible in the sense that it is capable of belief.
g. Whether the additional evidence discloses a strong prima facie case of wilful deception of the Court, this court has already cast doubt on credibility of the said evidence and so a prima facie case had not been established .
h. The proportionally and prejudice of allowing the additional evidence.
19. On whether the additional evidence directly relevant to the matter before the court and is in the interest of justice, the applicant said the evidence is on the causation of the accident and thus relevant herein and it is in the interest of justice that the same be allowed. The respondent denied this saying the evidence is irrelevant . The issue of causation of the accident is key in this case to determine liability and thus it is relevant .
20 . On whether the additional evidence will influence or impact upon the result of the verdict, the applicant’s case is that the same will impact on the final result of the appeal herein as the case is fraudulent while the respondent argues that it will not have any effect as it is not credible . It is trite law that credibility of a witness or evidence is a matter to be determined by court upon evaluation of the entire evidence and if the court finds that the evidence is credible then it will definitely go to the root of the judgment.
21. On whether the evidence 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, i note that the accident allegedly occurred on 15.11.21 and the demand notice is dated 28.3.22 , case was filed on 12.2.24 , the judgment was delivered on 29.4.24 and the instructions to the investigators to investigate the accident was issued on 4.6. 24. Order 11 is clear that defence ought to be filed with evidence which a party intends to rely on .There is no explanation as to why the instructions were not given to the investigators before filing of the suit since 2021 or before the case was concluded for it to be produced during trial . The applicant would reasonably have been aware of and procured the further evidence in the course of trial is to ensure fairness and due process. I find that the applicant’s insurers went on a fishing expedition for evidence after judgment to fill the lacunae in their case .
22. On whether 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, I have already found that the additional evidence would impact on the verdict and if there is any vagueness it will be cleared
23. On whether the evidence is credible in the sense that it is capable of belief, . the additional evidence is so voluminous making it difficult or impossible for the other party to respond effective. I have already found that the insurers of the applicant went fishing for evidence and so credibility of the same is in doubt.
24. On whether the additional evidence discloses a strong prima facie case of wilful deception of the Court, this court has already cast doubt on credibility of the said evidence and so a prima facie case had not been established .
25. On the proportionally and prejudice of allowing the additional evidence.i have carefully weighed the significance of the additional evidence and the need for expeditious disposal of cases and I find that since the instructions to investigate the accident were given 2 months after judgment and the delay in filing the application was grossly inordinate .The respondent will be greatly prejudiced if the application is allowed .
26. In the upshot, I find that the application is devoid of merit and I proceed to dismiss it with costs to the respondent. Further Mention 22.9.25
T.A ODERA
JUDGE
5.5.25
Delivered Virtually in the presence of Wafula for the Appellant /Applicant
Oigo court assistant
Wafula : I seek leave to file an order .
Order Supplementary record of appeal be filed and served within 21 days from today.
T.A ODERA
JUDGE
5.5.25
2. The appellant later filed the application dated 13.11.24 seeking leave to file /adduce additional evidence herein. The same is based on the grounds that the claim was filed on 26.2.24 and the applicant filed a notice of preliminary objection dated 11.3.24 which was heard and dismissed on 21.3.24 the same proceeded for hearing on 15.4.24 and 24.4.24 and judgment was delivered on . 29.4.24. Also that his insurers proceeded with investigations which were completed on 15.4.24 and a report filed. He also stated the investigations revealed that the documents relied on by the respondent were falsified . Further that the said information could not be adduced without undue delay an that no prejudice would be occasioned to the respondents and the application was filed without unreasonable delay and in good faith . He further stated that allowing the additional evidence will assist the court in the determination of the issues herein. She also filed a supporting affidavit dated 13.11.24 deponing to the facts of the case while reiterating the grounds stated above .
3. The applicant submitted that this court has jurisdiction to grant the orders sought under the provisions of section 78(1) (d) of the Civil Procedure Act and that the procedural law is Order 42 Rule 27 of the Civil Procedure Rules.
4. Also that Section 78 (1) provides that “subject to such conditions and limitations as may be prescribed, an appellate Court shall have power:
To determine case finally;
To remand a case;
To frame issues and refer them for trial;
To take additional evidence or to require the evidence to be taken;
To order a new trial”
5. Also that the other hand, Order 42 Rule 27 of the Civil Procedure Rules provides that:
“the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Court to which the appeal is preferred; but if
The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.
The Court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined
(2) wherever additional evidence is allowed to be produced by the Court to which the appeal is preferred the Court shall record the reason for its admission.”
6. The Applicant will be rely on the case of Kenya Agricultural and Livestock Research Organization v Leah Okoko & another [2022] eKLR which quoted with approval the Supreme Court in Mohammed Abdi Mohamud vs. Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR which the said case laid down the following principles for allowing additional evidence as follows:
79. “…We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
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 the 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;
k. The court will consider the proportionally and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
6. The applicant told this court that the trial court proceeded with the hearing on the 15th day of April 2024 and the 24th day of April 2024 respectively notwithstanding, the fact that the Appellant had not fully complied with Order 11 of the Civil Procedure Rules, 2010 as he had not obtained the requisite documents to mount a proper defence. For clarity, the Appellant had requested the Respondent to undergo a 2nd medical examination, and had further instructed its investigators to carry out investigations and verify the genuineness of the accident and the medical documents filed by the Respondent.
8. Applicant submitted that the investigations report that the
Appellant seeks to file and rely on could not have been obtained by the Appellant with reasonable diligence for use at the time trial, as same was not within his knowledge thus same could not have been produced at the time of the suit. For avoidance of doubt, the above material and information only came to the attention and knowledge of the Appellant and his insurer on or about the 15th day of July 2024 when the matter had already proceeded for hearing and judgment entered on the 29th April 2024.
9. Also that the said report forms part of applicant’s main argument in the Appeal that the small claims court is unsuited to handle compensation of personal injuries for reasons that in such claims, there is need to have a more thorough review of medical evidence, including having a second medical examination; investigations to determine the genuineness of the accident and the documents and the calling of expert witnesses. Thus, to be able to fully and properly defend such claims, 60 days will definitely be insufficient. On the other hand, the Applicant is aware of the rules and procedure of the court and is especially alive to the fact that the Report dated 15th July 2024 cannot be lodged in court neither can the intended witness testify without first seeking and obtaining leave of this Honourable. Be that as it may, the Witness and document sought to be added by the Plaintiff/Applicant seek to confirm the averments contained in Response to Statement of Claim dated 8th April 2024.
10. Further that the intended addition of witness and documents is calculated to bring on board all the witnesses and/or evidence in regards to the issues in controversy, to warrant an effective and effectual determination once and
That the evidence of the intended witness (if admitted) would be important to influence the result of the dispute before Court and for avoidance of doubt, the Investigation Report establishes and/or confirms that the documents filed in court and relied upon by the Respondent were inauthentic and falsified and that the unknown motorbike carrying the Respondent herein was to blame for the accident as it rammed the Appellant’s vehicle from behind.
11. It was submitted that the Respondent shall not suffer any prejudice as same will equally be granted an opportunity and/or chance to cross-examine the intended additional witnesses, if need be.
12. It was also argued that the mandate of this Honorable Court, is to hear parties on merit, and thereafter pronounce it’s self on the issues ventilated by the parties and not to punish parties by denying them their right to be heard. Also that the court had a duty to administer substantive justice as underscored by the provisions of Article 159(2)(b)(d) of the Kenyan Constitution 2010.
13. The Appellant/Applicant also relied on the decision in Kenya Agricultural and Livestock Research Organization ( Supra) where Justice Aburili held that ,
“ As to whether the additional evidence herein could have been adduced before the trial court, I note that the necessity of adducing the said evidence arises in response to the grounds of appeals raised by the respondent in its memorandum of appeal specifically paragraph 2, 3, 4 and 7.I further observe that the evidence in question was adduced during submissions.
In my view, the additional evidence sought to be adduced is directly relevant to the matter before the court and it is in the interest of justice to have the same adduced.
Further, the adduction of such evidence will give the appellant the opportunity to rebut or respondent to the same hence no prejudice will be suffered by the appellant if the application herein is allowed.”
14. In response to the application , the respondent filed the replying affidavit dated 7.1.24 in which she vehemently opposed the application deponed that the application was filed with utmost delay as the claim was filed on 12.2.24 and the applicant filed a preliminary objection instead of pursuing he report and that judgment was entered in her favour on 29.4.24 and the applicant gave instructions on the report on 4.6.24 and hence the orders sought are not warranted as they aim at delaying further progress in the lower court case. She said that the said additional evidence will not assist this court in determining the issues and it not credible Also that the reasons for the delay have not been explained and that she will be prejudiced by the orders sought herein as she will not get an opportunity to effectively respond to the issues herein .
15. The respondent submitted that the issue for determination is whether the applicant has laid down a good case for allowing new and compelling evidence under Article 50 (6) of the constitution. He cited the cases of Ladd Vs Marshall (1954) 3 All ER 745 at 148 Skone vs Skone(1971), 2All ER 582 at 586; LangdaleVs Danby (1982) 3ALL ER. 129 at 137; Sadrudin Sharin vs Tarlochan Singh (1961) EA.72, Elgood 274; American Express International Vs Atulkimar S. Patel, Application No.8B, of 1986 (SCU) (unreported); Karmali Vs Lakhani (1958), EA.567 and Corbett (1953), 2 ALL ER, 69. Where it was held that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:
(i) Discovery of new and important matters of evidence which, after the exercise of due diligence, 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;
(ii) It must be evidence relevant to the issues;
(iii) It must be evidence which is credible in the sense that it is capable of belief;
(iv) The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;
(v) The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given;
The Application to admit additional evidence must be brought without undue delay.
Further that litigation must come to an end and that the discretion to allow application to adduce new or additional evidence should be exercised sparingly where a case has been concluded .
Also that in the case of Kibos Sugaar & Allied Industries Limited & Another v Benson Ambuti Adega & 6 Others, Civil Appeal (Application) No. 153 of 2019 (unreported) the court quoted with approval the English case of The National Guild of Removers & Storers Limited v Bee Moved Limited & Others (2018) EWCA Civ. 1302 that:
"In determining whether an appellate court can admit additional evidence, the court must seek to give effect to the overriding objective of doing justice and, in doing so, attempt to strike a fair balance between the need for concluded litigation to be determinative of disputes and th desirability that the judicial process should achieve the right result."
12. The respondent told this court that the investigations were conducted from 4th June 2024 after the delivery of judgment on 29th April in the presence of the Appellant and Respondents advocate and that they should have issued instructions for the report before the close of pleadings to afford the her a chance to rebut the evidence.
I1. It was further submitted that the Respondent will be prejudiced by the admission of' new evidence at this stage as they prosecuted their case in the trial Court timeously, and the Appellant had a chance to make the instant application in the lower court in the lower court but instead resorted to apply delaying tactics.
13. The respondent urged this court to find that compelling the him to go through another fact-finding trial will be unjust.
14. Appellant and Respondents advocate. In the event the Appellant were intending to call for the report, they should have done the same before close of pleadings to afford the Respondent a chance to rebut the evidence.
15. In the end the respondent urged this court to find that the said additional evidence is not credible and not merited as the instructions for the report were issued upon the delivery of judgment showing clearly that the Appellants are on fact finding mission and trying to delay the matter and deny the respondent from enjoying the fruits of her judgment through filing of this application .
16. I have carefully considered the application the response and the rival submissions by the parties herein. It is not disputed that the threshold for allowing additional evidence was laid down in the case of ;
17. Mohammed Abdi Mohamud vs. Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR which the said case laid down the following principles for allowing additional evidence as follows:
79. “…We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
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 the 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;
k. The court will consider the proportionally and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”
18. The issues for determination herein are therefore as follows ;
a. whether the additional evidence directly relevant to the matter before the court and is in the interest of justice.
b. whether the additional evidence directly relevant to the matter before the court and is in the interest of justice, the applicant said the evidence is on the causation of the accident and thus relevant herein and it is in the interest of justice that the same be allowed.
c. Whether the additional evidence will influence or impact upon the result of the verdict.
d. Whether the evidence 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.
e. Whether 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.
f. Whether the evidence is credible in the sense that it is capable of belief.
g. Whether the additional evidence discloses a strong prima facie case of wilful deception of the Court, this court has already cast doubt on credibility of the said evidence and so a prima facie case had not been established .
h. The proportionally and prejudice of allowing the additional evidence.
19. On whether the additional evidence directly relevant to the matter before the court and is in the interest of justice, the applicant said the evidence is on the causation of the accident and thus relevant herein and it is in the interest of justice that the same be allowed. The respondent denied this saying the evidence is irrelevant . The issue of causation of the accident is key in this case to determine liability and thus it is relevant .
20 . On whether the additional evidence will influence or impact upon the result of the verdict, the applicant’s case is that the same will impact on the final result of the appeal herein as the case is fraudulent while the respondent argues that it will not have any effect as it is not credible . It is trite law that credibility of a witness or evidence is a matter to be determined by court upon evaluation of the entire evidence and if the court finds that the evidence is credible then it will definitely go to the root of the judgment.
21. On whether the evidence 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, i note that the accident allegedly occurred on 15.11.21 and the demand notice is dated 28.3.22 , case was filed on 12.2.24 , the judgment was delivered on 29.4.24 and the instructions to the investigators to investigate the accident was issued on 4.6. 24. Order 11 is clear that defence ought to be filed with evidence which a party intends to rely on .There is no explanation as to why the instructions were not given to the investigators before filing of the suit since 2021 or before the case was concluded for it to be produced during trial . The applicant would reasonably have been aware of and procured the further evidence in the course of trial is to ensure fairness and due process. I find that the applicant’s insurers went on a fishing expedition for evidence after judgment to fill the lacunae in their case .
22. On whether 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, I have already found that the additional evidence would impact on the verdict and if there is any vagueness it will be cleared
23. On whether the evidence is credible in the sense that it is capable of belief, . the additional evidence is so voluminous making it difficult or impossible for the other party to respond effective. I have already found that the insurers of the applicant went fishing for evidence and so credibility of the same is in doubt.
24. On whether the additional evidence discloses a strong prima facie case of wilful deception of the Court, this court has already cast doubt on credibility of the said evidence and so a prima facie case had not been established .
25. On the proportionally and prejudice of allowing the additional evidence.i have carefully weighed the significance of the additional evidence and the need for expeditious disposal of cases and I find that since the instructions to investigate the accident were given 2 months after judgment and the delay in filing the application was grossly inordinate .The respondent will be greatly prejudiced if the application is allowed .
26. In the upshot, I find that the application is devoid of merit and I proceed to dismiss it with costs to the respondent. Further Mention 22.9.25
T.A ODERA
JUDGE
5.5.25
Delivered Virtually in the presence of Wafula for the Appellant /Applicant
Oigo court assistant
Wafula : I seek leave to file an order .
Order Supplementary record of appeal be filed and served within 21 days from today.
T.A ODERA
JUDGE
5.5.25