Automated Summary
Key Facts
Diana Kethi Kilonzo sought to contest a Makueni Senatorial by-election after being nominated by the Wiper Party following the death of the previous senator. Her nomination was revoked by the IEBC Disputes Resolution Committee in July 2013, which found she was not a registered voter, citing inconsistencies in her voter registration documents and a suspect acknowledgment slip. Kilonzo petitioned the High Court, which dismissed her case but allowed the Wiper Party to nominate another candidate. She then appealed to the Court of Appeal, seeking to introduce additional evidence, but the court dismissed her application, ruling the evidence was already considered during the Committee hearings and that she failed to demonstrate due diligence in seeking it earlier.
Issues
- Whether the respondents had violated the applicant's constitutional rights.
- Whether the Committee had jurisdiction to hear and determine the complaints leading to the petition.
- Whether the respondents had violated the applicant's legitimate expectation.
- Whether the High Court had jurisdiction to hear and determine the petition, and if so the extent of the jurisdiction.
Holdings
- The Court held that Rule 29 of the Court of Appeal Rules does not apply to appeals from the High Court's supervisory jurisdiction. This aligns with prior rulings like Peninah Nandako Kiliswa v IEBC, where similar applications in supervisory jurisdiction appeals were rejected.
- The applicant failed to demonstrate that the additional evidence could not have been obtained with reasonable diligence during the High Court proceedings. The Court noted her delay in seeking the evidence, which occurred after the High Court had already delivered its judgment.
- The Court dismissed the applicant's motion to admit additional evidence, finding that the evidence was already before the Nominations Dispute Resolution Committee and had been cross-examined during those proceedings. The applicant did not seek production of the evidence during the Committee or High Court hearings, failing to demonstrate due diligence.
- The Court determined that the requested additional evidence (including reports from all constituencies and acknowledgment slips) was not relevant to the appeal. The issues in the appeal required focused evidence on Langata Constituency, not broad, unfocused materials.
Remedies
The application was dismissed with costs to the respondents.
Legal Principles
- The Court applied the principles for admitting additional evidence under Rule 29 of the Court of Appeal Rules, derived from Ladd vs Marshall (1954). The evidence must (1) not have been obtainable with reasonable diligence, (2) probably influence the case, and (3) be apparently credible. The Court emphasized that appellate courts should not admit evidence to reconstruct a case or improve it, as this would undermine the finality of litigation ('interest republicae ut sit finis litium').
- The applicant asserted that her legitimate expectation to contest the election was violated by the IEBC's revocation of her nomination. The Court acknowledged this as a raised issue but dismissed the application for additional evidence, finding it irrelevant to the appeal's determination and inconsistent with procedural rules.
- The Court examined the IEBC's decision-making under judicial review principles, particularly whether the High Court's supervisory jurisdiction (Article 165) allowed for the appeal and if the IEBC exceeded its authority (ultra vires) in revoking the applicant's nomination certificate. The Court noted that Rule 29 applies only to appeals from the High Court's original jurisdiction, not supervisory jurisdiction, as established in cases like Peninah Nandako Kiliswa v IEBC (CA No 201 of 2013).
Precedent Name
- THE ADMINISTRATOR, H H THE AGHA KHAN PLATINUM JUBILEE HOSPITAL VS MUNYAMBU
- JOGINDER AUTO SERVICES LTD VS MOHAMMED SHAFFIQUE & ANOTHER
- PENINAH NANDAKO KILISWA VS IEBC & 2 OTHERS
- ROBERT MWANGI NJOROGE VS REPUBLIC
- KUWINDA RURINJA CO LTD VS KUWINDA HOLDINGS LTD & OTHER
- MOSES ODERO OWOUR & OTHERS V ANDRONICO OTIENO ANINDO
- ESTHER NJOGU & ANOTHER V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
- KARMALI TARMOHAMED & ANOTHER VS I H LAKHANI & CO LTD
- ELIZABETH CHEPKOECH SALAT V JOSEPHINE CHESANG CHEPKWONY SALAT
- CENEST AIRLINES LTD VS KENYA SHELL LTD
- GENERAL PARTS (U) LTD VS KUNNAL PRADIT KARIA
- WANJE & OTHERS VS SAIKWA & OTHERS
Cited Statute
- Constitution of Kenya
- Court of Appeal Rules
- Elections Act, 2011
Judge Name
- W. Karanja
- K. M'Inoti
- J. W. Mwera
Passage Text
- "This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The rule does not authorise the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence."
- "To justify reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, 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; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
- "We do not find any merit in the Motion dated 18th February, 2014 and accordingly the same is hereby dismissed with costs to the respondents."