https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8862

Elite Power Craft Ltd t/a Amaron Batteries Kenya v Angweny (Civil Appeal E1317 of 2024) [2026] KEHC 8862 (KLR) (Civ) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8862 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1317 of 2024 AN Ongeri, J June 10, 2026 Between Elite Power Craft Limited T/A Amaron Batteries Kenya Appellant and Kevin Nyambane Angweny Respondent Ruling 1.There are two Applications coming for consideration in this ruling as follows; 2.The Respondent’s Application dated 16/6/2025 seeking the following Orders;i.That the court expunges or strikes out pages 19–28 of the Record of Appeal dated 7th April 2025.ii.That the court expunges or strikes out pages 30–32 of the same Record of Appeal.iii.That the court orders the Appellant (Elite Power Craft Limited) to file an amended Record of Appeal that excludes pages 19–28 and pages 30–32.iv.That the court provides for the costs of this application. 3.The Respondent stated that the appellant had introduced new evidence (photographs and ADR application forms) at the appeal stage, which were not part of the record before the Office of the Data Protection Commissioner (ODPC). 4.The Appellant did not seek leave of the court before introducing this new evidence. 5.The Appellant’s Record of Appeal contains fabricated material intended to mislead the court. 6.The Respondent (Applicant in this application) will suffer untold prejudice if the orders sought are not granted. 7.It is fair and just that the application be heard and determined forthwith. 8.The court is urged to order the Appellant to file a proper Record of Appeal that accurately reflects the record from the ODPC. 9.The application is supported by the Affidavit of Kevin Nyambane Angwenyi (Sworn on 16/6/2025) 10.The Deponent stated in the said Affidavit that he filed a complaint with the ODPC (Complaint No. 679 of 2024), which was successful. 11.That The Appellant was given an opportunity to respond to the complaint. 12.In the ODPC proceedings, the Appellant did not file any photographs or application for ADR forms in response to the complaint. 13.That in the Appeal, the Appellant has now included photographs (pages 19–28) and ADR forms (pages 30–32) which were never part of the ODPC record. 14.That he is advised by his advocates that a Record of Appeal should only contain proceedings and pleadings from the lower court or tribunal. 15.That he is advised that parties are precluded from introducing new evidence at the appeal stage without leave. 16.That no leave was sought by the Appellant before introducing the new evidence. 17.That emails from the ODPC (attached as KMA-1) confirm that no photographs or ADR forms were ever filed before the ODPC. 18.That it is in the interest of justice that he makes this application. 19.He prays that the court orders the Appellant to file a proper Record of Appeal and unless the orders are granted, he will suffer substantial loss. 20.The 2nd application dated 9/10/2025 is filed by the Appellant/Applicant, Elite Power Craft Limited T/A Amaron Batteries Kenya seeking the following orders;i.That this Honourable Court be pleased to grant leave to the Appellant/Applicant to adopt and rely on further documents listed and annexed at pages 19-28 and 30-32 of the Record of Appeal as part of the record in this appeal.ii.That the documents be deemed duly filed and form part of the appellate record.iii.That the costs be in the cause. 21.It is supported by the Supporting Affidavit sworn by Hamid Ahmed Mohamed, a director of the Appellant in which he stated as follows;i.That the facts deponed to herein are derived partly from his own knowledge, partly from records and documents in his possession, and partly from information/advice received from his advocates on record, Messrs. Odindo & Ambala Advocates LLP.ii.That he has read and understood the contents of the Notice of Motion Application filed herewith and in support thereto he wishes to file the instant affidavit.iii.That the judgment of the Data Commissioner was delivered on 14th August 2024 by the Office of the Data Protection Commissioner (“ODPC”).iv.That upon receipt and reading of the Judgment, it came as a surprise to them that the said judgment was issued without them being given an opportunity to present their case and adduce evidence in their defence.v.That they hurriedly issued instructions to their current advocates to file the instant appeal together with an injunction application.vi.That he is aware that their advocates wrote to the office of the ODPC inquiring for certified copies of the proceedings and determination and upon receipt of a response thereto filed the record of appeal which included all the documents they delivered to his office.vii.That at this point, they verily believed that the said documents were part and parcel of the documents filed together with the letter dated 5th June 2024 to the ODPC by the advocates who represented them then M/s GNK & Associates LLP, given that they had handed them over to their then advocates and the letter also referred to them.viii.That the said documents had also been filed as annexures to their application seeking leave to appeal the decision of the ODPC and also seek an injunction against execution of the judgment of the ODPC.ix.That upon filing the record of the appeal, they were later informed by their advocates on record that the Respondent had raised an objection to some of the documents they had filed in the record of appeal given that they did not form part of the record of the complaint before the ODPC.x.That to be precise, the Respondent complained and sought to have struck out documents appearing at pages 19-28 and 30-32 of the record of appeal.xi.That the documents annexed at pages 19-28 of the record of appeal are links to the Respondent’s facebook and youtube accounts which have photos similar to the ones the Respondent relied on in his complaint to the ODPC.xii.That the said links and photos will go a long way in helping the court come to a just and equitable decision putting all factors into consideration, an opportunity they were denied before the ODPC.xiii.That the documents listed at pages 30-32 are a standard application form for alternative dispute resolution (“ADR”) at the ODPC before the matter is referred to ADR which they filed with the ODPC to enable the matter be referred to ADR which was duly done. They thus form part of the record before the ODPC.xiv.That the said documents are paramount for the court to have a holistic view of the dispute before it. Furthermore, the said documents go to the root of some of the grounds of appeal in the memorandum of appeal being that the ODPC failed to conduct proper investigations and give the appellants a fair chance to present its case.xv.That he is verily advised by their advocates on record that the Respondent will also be given an opportunity to interrogate the said documents thus no prejudice will be occasioned to them if the said documents are admitted at this stage.xvi.That they are further verily advised by their advocates on record that this Honourable Court has the power to grant the orders sought in this application.xvii.That there is no irreparable prejudice that will be occasioned to the Respondent and it is in the interest of justice, law and equity to grant this application. 22.The parties filed written submissions as follows; The appellant submitted that he is appealing against a decision of the Data Commissioner and has asked the High Court to keep certain documents in the appeal record, while the respondent wants those documents removed. 23.The disputed documents appear at pages 19–28 and 30–32 of the record of appeal. 24.The documents at pages 19–28 show that the respondent allegedly liked, shared, and used the appellant’s name on social media, meaning the respondent may have consented to or participated in the use of his own images. 25.The documents at pages 30–32 consist of an application for alternative dispute resolution that the appellant filed with the Data Commissioner, but which the Commissioner never considered. 26.The appellant argues that the Data Commissioner did not hold a proper hearing or carry out any investigation before delivering a decision that took the appellant by surprise. 27.Because the appellant was not given an opportunity to present these documents to the Data Commissioner, the appellant now asks the High Court to admit them as additional evidence in the appeal. 28.The appellant relies on Article 159 of the Constitution, which says courts must do justice without undue regard to procedural technicalities. 29.The appellant also relies on Article 50 of the Constitution, which guarantees every person the right to a fair hearing. 30.Sections 3 and 3A of the Civil Procedure Act (the “oxygen rules”) give the court power to make any orders necessary to achieve justice. 31.Section 78 of the Civil Procedure Act specifically allows the High Court, as an appellate court, to admit additional evidence or require evidence to be taken to ensure justice is done. 32.The appellant cites the Court of Appeal case of Kibos Sugar & Allied Industries Limited v Benson Ambuti Adega, which approved the English case of National Guild of Removers & Storers Ltd v Bee Moved Ltd, stating that an appellate court must give effect to the overriding objective of doing justice and strike a fair balance between finality of litigation and achieving the right result. 33.The same Kibos case also quoted Lord Denning in Ladd v Marshall that an appellate court will not admit fresh evidence unless it was not available at the trial or could not have been obtained with reasonable diligence, except in cases of fraud or surprise. 34.The appellant says it was caught by surprise because the Data Commissioner delivered a decision without a hearing or investigation. 35.The appellant then relies heavily on the Supreme Court decision in Mahamud v Mohamad, which laid down eleven principles for admitting additional evidence in appellate courts. 36.The eleven principles are: the evidence must be directly relevant and in the interest of justice; it must be capable of influencing the result; 37.Further, that it could not have been obtained with reasonable diligence for the original trial; it removes vagueness or doubt over the case; it is credible; it is not so voluminous as to prevent an effective response; the court considers whether the party could reasonably have been aware of it during trial; it may show willful deception of the court; it is not used merely to fill gaps or patch weak points; an unsuccessful party cannot use it to make a fresh case on appeal; and the court must consider proportionality and prejudice. 38.The appellant submits that all these principles are satisfied because the documents are directly relevant to whether the appellant used the respondent’s images without consent, the evidence would influence the court’s decision, 39.Further. it could not be produced before the Data Commissioner since no opportunity was given, the evidence is not voluminous, the respondent can respond effectively, the appellant is not trying to fill gaps because there was no proper hearing at all, and the respondent will suffer no prejudice as he can still respond. 40.On costs, the appellant submits that costs are discretionary but usually follow the event. 41.The appellant concludes that the documents at pages 19–28 and 30–32 are very important for the court to make an informed and just decision. 42.The appellant argues that no prejudice will be caused to the respondent because the respondent will have an opportunity to respond through submissions or affidavit evidence. 43.The appellant warns that if the documents are expunged from the record, the appellant will suffer grave injustice, having already been denied a chance to present its case before the Data Commissioner, and a second denial would constitute a travesty of justice. 44.The Respondent (Elite Power Craft Limited) filed submissions in the Kenyan High Court opposing an application by the Appellant dated 9th October 2025 and supporting its own application dated 16th June 2025. 45.The dispute arises from an appeal against a decision by the Data Commissioner. The Respondent alleges that the Appellant, after filing its Record of Appeal, improperly included additional documents that were never part of the evidence during the original trial. 46.The Respondent filed its application on 16th June 2025 seeking to have these unauthorised documents expunged from the court record. 47.In response, the Appellant filed its own application on 9th October 2025. The Respondent describes this application as a frivolous, belated afterthought and a mere distraction, filed without the necessary leave of the court, to cure the problem only after it was discovered. 48.The Respondent relies on legal principles from the Supreme Court case of Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others, which sets out the threshold for admitting additional evidence on appeal. The Respondent argues the Appellant has failed to meet this threshold. 49.The Respondent accuses the Appellant of bad faith and material non-disclosure, arguing that the Appellant did not inform the court that it had introduced unauthorised documents. 50.The Respondent invokes the equity maxim "he who comes to equity must come with clean hands" from the case of Dering v Earl of Winchelsea, arguing that the Appellant is not entitled to relief. 51.Citing the Court of Appeal case of Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others and the English case of King v The General Commissioners for the Purposes of the Income Tax Act for the District of Kensington, the Respondent submits that the Appellant failed its duty of full and frank disclosure in ex parte proceedings. 52.The Respondent contrasts its own application (16th June 2025), which it describes as meritorious and timely, with the Appellant's "knee-jerk" application, which it says lacks merit and should be dismissed with costs. 53.The document also includes the full judgment of the Court of Appeal in Mohamed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others (an election petition), where the court upheld the High Court's finding that the appellant was disqualified from being elected as a governor because he did not possess a valid university degree as required by law. 54.In that election case, the court emphasised that an election is a process not just an event, and the High Court had jurisdiction to inquire into a candidate's qualifications even after the IEBC had cleared him. 55.The election case further held that when a petitioner establishes a prima facie case, the evidential burden shifts to the respondent to rebut it; the appellant's failure to testify and avoid cross-examination led to adverse inferences being drawn against him. 56.The document additionally contains a ruling from the Environment and Land Court in Halima Haji Sarah v Multiple Hauliers (E.A) Limited & another, where the plaintiff was found guilty of material non-disclosure for failing to disclose a previous similar case and a property transfer, leading the court to discharge orders previously obtained. 57.Based on all these authorities, the Respondent in the main appeal concludes that the Appellant's application dated 9th October 2025 should be dismissed with costs, while the Respondent's own application dated 16th June 2025 should be allowed with costs. 58.The two applications before the court raise the singular issue of whether the documents at pages 19-28 (photographs and social media links) and pages 30-32 (an ADR application form) should form part of the appellate record in the appeal against the decision of the Office of the Data Protection Commissioner (ODPC). 59.The Respondent seeks to expunge these documents on the basis that they constitute new evidence introduced without leave, while the Appellant seeks leave to adopt and rely on the same documents as part of the record. 60.The two applications before the court raise a singular issue of whether the documents at pages 19-28 (photographs and social media links) and pages 30-32 (an ADR application form) should form part of the appellate record in the appeal against the decision of the Office of the Data Protection Commissioner (ODPC). 61.The Respondent seeks to expunge these documents on the basis that they constitute new evidence introduced without leave, while the Appellant seeks leave to adopt and rely on the same documents as part of the record. 62.The relevant legal framework is Section 78 of the Civil Procedure Act and the Supreme Court guidelines in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others (supra), requiring:a.Direct relevance and interest of justice;b.Inability to obtain the evidence with reasonable diligence for use at the original trial;c.Credibility and not for filling gaps or patching weak points;d.Proportionality and prejudice. 63.The Appellant failed to meet the threshold, as it admitted the documents at pages 19-28 were within its knowledge and possession during ODPC proceedings and could have been produced with reasonable diligence. 64.The Appellant’s claim that the ADR forms (pages 30-32) were filed with the ODPC was contradicted by the Respondent’s unrebutted email evidence from the ODPC confirming no such documents were filed. 65.The Appellant’s reliance on Article 159 of the Constitution and Sections 3 and 3A of the Civil Procedure Act cannot cure the defect, as the composition of the record of appeal goes to the integrity of the appellate process, not mere technicality. 66.The Respondent correctly invoked the equitable maxim he who comes to equity must come with clean hands (Dering v Earl of Winchelsea, 1787), and the Appellant’s belated attempt to regularize the irregular introduction of documents did not merit discretion in its favour. 67.Where an Appellant includes documents irregularly is for the Respondent to point them out for exclusion, which the Respondent did via its application dated 16th June 2025. 68.The documents at pages 19-28 were an attempt to patch up a weak point in the Appellant’s defence, contrary to the Mohamed Abdi Mahamud warning against using additional evidence to fill gaps or make a fresh case on appeal. 69.The Appellant offered no satisfactory explanation for why the documents at pages 30-32 were not presented to the ODPC. 70.This court makes final orders as follows;i.That the Respondent’s Application dated 16th June 2025 is hereby allowed.ii.That Pages 19-28 and pages 30-32 of the Record of Appeal dated 7th April 2025 are hereby expunged and struck out from the record.iii.That the Appellant shall file an amended Record of Appeal excluding the said pages within fourteen (14) days of the date hereof.iv.That the Appellant’s Application dated 9th October 2025 seeking leave to adopt and rely on the said documents is hereby dismissed.v.That the costs of both applications shall be borne by the Appellant. 71.Orders to issue accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEDelivered in the presence of:Mr. Ambala for the AppellantMiss Mburia for the Respondent