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Mount Elgon Beach Properties Limited v. Harrison Shikaru Mwanongo & Kalume Mwanongo Mwagaro

(2019) JELR 98887 (CA)

Court of Appeal  •  Civil Appeal 102 of 2018  •  14 Mar 2019  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Martha Karambu Koome, Wanjiru Karanja

Judgement

RULING OF THE COURT

1. The principles that guide this Court when exercising its discretionary power under Rule 29 of the Rules of the Court are well settled. Those principles were well summarized by Chesoni, Ag. JA. (as he then was) in Mzee Wanjie and 93 others v. A. K. Saikwa and others (1982­88) 1 KAR 462 where he stated:

“The principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd v. Marshall [1954] 1 WLR 1489 at 1491 and those principles are:

1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently c…

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