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Stephen Boro Gitiha v. Nicholas Ruthiru Gatoto,Ndarugu Merchants & Rural Urban Credit Finance (Under Receivership)

(2015) JELR 94948 (CA)

Court of Appeal  •  Civil Appeal (Application) 216 of 2014  •  31 Jul 2015  •  Kenya

Coram
Mohammed Abdullahi Warsame, Jamila Mohammed, Sankale ole Kantai

Judgement

RULING OF THE COURT

The principles that guide this Court in allowing the introduction of additional evidence are well known. The power to take additional evidence is found at rule 29 (1) of this Court’s rules which provides as follows:

“29. (1) On any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power—

to re-appraise the evidence and to draw inferences of fact; and

in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.”

The principles upon which the Court will rely have been clearly set out in case law. In Karmali Tarmohamed and Anor. v. I.H.Lakhani [1958] EA 567 the predecessor to this Court held that:

“(i) except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial, or that reasonable dilig…

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