Cyrus Shakhalaga Khwa Jirongo V Soy Developers Limited & 9 Others  EKLR
|Petition (Application) 38 of 2019||04 Aug 2020|
David Kenani Maraga, Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin C Wanjala, Susanna Njoki Ndungu
Supreme Court of Kenya
Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited, Sammy Boit Arap Kogo, Antoinette Boit, Attorney General, Director of Public Prosecutions, Director of Criminal Investigations, Inspector General of Police, Chief Magistrates Court, Nairobi, Deposit Protection Fund (as Liquidator of Post Bank Credit Ltd) & ASL Limited
Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others  eKLR
Principles applicable in considering leave for additional evidence in an appeal.
Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others
Petition (Application) No. 38 of 2019
Supreme Court of Kenya
DK Maraga CJ and P; PM Mwilu DCJ and VP; MK Ibrahim, SC Wanjala and SN Ndungu, SCJJ
August 4, 2020
Reported by Ribia John
Evidence Law – appeals – applicable principles when introducing new evidence in an appeal - what were the principles applicable in considering leave for additional evidence in an appeal - whether the Supreme Court would allow an application seeking leave to admit new evidence in an appeal where the evidence had been the possession of the applicant throughout the trial process
The petitioner had been charged with counts of obtaining security by false pretences, of making a document without authority, uttering false documents and giving false information to a person employed in the public service. The petitioner approached the High Court in a constitutional petition seeking an order of prohibition seeking to stop the Director of Public Prosecutions and the Magistrate’s Court from proceeding with the matter. The petition failed; aggrieved the petitioner filed an appeal at the Court of Appeal. The appeal also failed. Aggrieved, the petitioner approached the Supreme Court. At the Supreme Court the petitioner filed the instant application which sought leave to introduce new evidence. The petitioner alleged that the fresh evidence dating back to more than 27 years ago had only been discovered and retrieved from the archives of the National Bank of Kenya Ltd and could not have been adduced before the High Court or the Court of Appeal.
- What were the principles applicable in considering leave to adduce additional evidence during an appeal?
- Whether the Supreme Court would allow an application seeking leave to admit new evidence in an appeal where the evidence had been the possession of the applicant throughout the trial process.
- The Supreme Court had the jurisdiction to hear and determine an application for leave to adduce additional or new evidence. What was also apparent was that the exercise of that jurisdiction could not be whimsical, and the Court would not be in haste in granting the same. It had to consider all the relevant prevailing circumstances and make such order as it would deem fit in the interests of justice.
In considering an application for leave for additional evidence in an appeal, the Supreme Court had to consider the following principles:
- the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
- it must be such that, if given, it would influence or impact upon the result of the verdict, although it needed not be decisive;
- it was 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 that sought to adduce the additional evidence;
- Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and had a direct bearing on the main issue in the suit;
- the evidence must be credible in the sense that it was capable of belief;
- the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
- whether a party would reasonably have been aware of and procured the further evidence in the course of trial was an essential consideration to ensure fairness and due process;
- where the additional evidence disclosed a strong prima facie case of willful deception of the court;
- the court must be satisfied that the additional evidence was not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.
- A party who had 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.
- The court would consider the proportionality and prejudice of allowing the additional evidence. That required 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 could arise from the additional evidence on the other.
Even with the said principles being the basis for grant of such leave, the Supreme Court would still determine each application on a case by case basis, and even so, act with restraint and abundance of caution in allowing additional evidence.
- The application did not meet the threshold set out above. The petitioner had not shown that the additional, new and fresh evidence could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge, or could not have been produced at the time of the suit or petition. That was evidenced by the letter written by the bank dated November 20, 2019 addressed to the Director, Banking Fraud Investigation Unit. The letter showed that the petitioner did not satisfy the second ambit of the principle in the following manner: he had knowledge of the documents or evidence that he sought leave to adduce as new and fresh evidence. The letter from the bank stated categorically that the authentication and review of the petitioner’s statement of account was on the basis of the vouchers that he had provided them. Quite arguably, that went against the petitioner’s averments that he was unable to obtain records of documents as they had been destroyed, or that he had feverishly been searching for evidence, which by all accounts, was all along in his possession. Further it could also be reasonably inferred or deduced that the bank was able to respond to the petitioner’s request in a considerably short period of time, contrary to assertions made by the petitioner that the bank had taken several months to recover copies of the missing payments made to the 1st, 2nd and 3rd respondents.
- The petitioner and the bank exchanged letters between August 2, and August 14, 2019. Had the petitioner shown that he had on several occasions prior to that date written to the bank requesting for the said documents over a considerable period of time, then the instant court would have been inclined to believe that he had exercised due diligence in trying to retrieve the documents before, during trial and after the initial trial and subsequent appeal. However, the petitioner had only presented one letter which the bank responded to promptly and effectively. In Judicial Review No. 78 of 2016 instituted by the petitioner at the High Court, it was not shown that he had presented to the trial Court that he had engaged the bank in retrieving the documents and letters that he now sought leave to adduce into the instant court. Further, it was not shown that there was a similar letter written to the bank during the period requesting for the said information. It was also not shown that during the appeal to the Court of Appeal, the petitioner had sought out the bank to provide the information and documents that he needed to adduce before the instant Court.
- The Court of Appeal delivered judgment on July 19, 2019. It was only after the appellate court had rendered its judgment that the petitioner wrote to the bank on August 2, 2019 seeking to have them provide the information that he now sought to introduce as new and fresh evidence. The letter from the Registrar of Companies was also responded to in a relatively short period. That information was within the purview of the petitioner had he made any effort to obtain it earlier. The petitioner was indolent, and in an application premised on discretion, his indolence was his waterloo.
- The interests of justice dictated that the Supreme Court had to ensure that all parties to a dispute were accorded a fair hearing in order to resolve issues not only amicably, but also judiciously. However, the court was unconvinced that the petitioner was not accorded a fair trial at the Superior Courts below the Supreme Court. The Supreme Court was perturbed, as it was curious at this strange turn of events where the petitioner now wanted to engage the instant court in gerrymandering and cat games in the name of adducing additional evidence in an otherwise straight forward appeal.
- By seeking leave to admit new evidence, which had all along been in his possession going by the facts of the case, the petitioner would be abusing, not only the discretion of the instant court in exercise of its jurisdiction, but also its processes, and seeking, rather dubiously and ingeniously, to reconstitute his case which had been conclusively determined by the Superior Courts below. The petitioner, being unsuccessful at the Court of Appeal, was now trying to amend and make corrections to his case by seeking to introduce supposed new and fresh evidence.
Application dismissed and costs awarded to the respondents.