[2002] KEHC 980 (KLR)
The court found that the applicant had not demonstrated that the lower court refused to admit any material evidence, nor had the appellate court indicated a need for further evidence to pronounce judgment. Furthermore, the applicant failed to show that the evidence sought to be adduced was discovered after the lower...
Source-derived case information.
- Citation
- [2002] KEHC 980 (KLR)
- Parties
- Appellant: Hilda Nyambura Gathuri; Respondent: Wilson Mwangi Ramson
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 179 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Application for Adduction of Additional Evidence on Appeal
- Outcome
- application dismissed
- Legal Topics
- Adduction of Evidence on Appeal, Additional Evidence, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilda Nyambura Gathuri
Appellant
Wilson Mwangi Ramson
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Adduction of Additional Evidence on Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for adduction of additional evidence on appeal under Order XLI rule 22 of the Civil Procedure Rules.
- 2 Whether the grounds for the application are distinct from the grounds of appeal.
Ratio Decidendi
The court found that the applicant had not demonstrated that the lower court refused to admit any material evidence, nor had the appellate court indicated a need for further evidence to pronounce judgment. Furthermore, the applicant failed to show that the evidence sought to be adduced was discovered after the lower court's judgment or that it could not have been obtained with reasonable diligence. The grounds for the application mirrored the grounds of appeal, and if the appeal succeeded, a retrial would allow for the introduction of the intended evidence. Therefore, the application for adduction of additional evidence was unsustainable and was dismissed.
Court Disposition
application dismissed
Orders
- The application for adduction of additional evidence is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 179 OF 1995
HILDA NYAMBURA GATHURI ……………………….. PLAINTIFF
VERSUS
WILSON MWANGI RAMSON ………………………….DEFENDANT
R U L I N G
An order for adduction of additional evidence on appeal can be made in the following circumstances namely:-
(a) When the lower court refuses to admit evidence which ought to have been admitted;
(b) When the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgemen t, or
(c) For any other substantial cause.
(see Order XLI rule 22 of the Civil Procedure Rules).
In regard to (a) and (b) the applicant has not submitted that the lower court declined to admit some particular evidence which was material to her case, nor has this court intimated it requires production of any document or examination of any witness to enable it pronounce judgement to bring into play above provisions of the Civil Procedure Rules. As regards © above, this provision would tend to relate to a situation where evidence emerges relating to the matter in issue and which the party complaining had no knowledge of, after judgement has been delivered or order made.
The submission of counsel herein relates to production of documentary evidence or adduction of oral evidence without saying whether the applicant became aware of this evidence after the lower court judgement or order – (see DICK vs KOINANGE [1973] E.A. 165 at P.166).
In any case, the grounds upon which this application is based appear to be the same ones as the grounds of appeal and that if the appeal were found to be meritorious one of the orders to be made would be a retrial in which event all the evidence intended to be produced/adduced in paragraph 8 of this application would be adduced.
This application is unsustainable and I dismiss it with no order for costs. The applicant whould move fast to fix the appeal to hearing.
Delivered this 20th day of February, 2002.
D.K.S AGANYANYA
JUDGE