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Court of AppealDismissedCivil Appeal 31 of 1977 (application)· [1978] KECA 9 (KLR)

CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) (Civil Application 12 of 1978) [1978] KECA 9 (KLR)

Court of Appeal
18 May 1978
CMC. B. Madan
826 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that court pleadings are not evidence until their claims are proved or admitted, so they cannot be added as new evidence on appeal.

What this practically means

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Executive summary

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This is an in-chambers ruling by Madan JA on an application under rule 29(2) of the Court of Appeal Rules by Cruisair Ltd, the appellant in Civil Appeal 31 of 1977, seeking to have the amended pleadings in High Court Civil Case 842 of 1976 admitted as additional evidence in its appeal against a High Court decision on a winding-up petition presented by CMC Aviation Ltd on the ground that Cruisair was insolvent and unable to pay its debts and that it was just and equitable that it be wound up. The civil suit, in which Cruisair claimed the return of an aircraft and equipment or their value of Shs 1,368,105 plus damages, was still unheard; the amended pleadings (including the amended plaint after joinder of an insurance company as second defendant) were all filed after delivery of the judgment in the winding-up cause. Counsel for the applicant argued that the amended pleadings were evidence that came into being after the hearing below and relied on the three conditions stated by Denning LJ in Ladd v Marshall. The court held that the threshold question was whether pleadings constitute evidence at all. It held that pleadings contain only averments which, until proved, disproved or admitted, are not evidence and can found no decision; proof is the foundation of evidence, and averments are not made on oath. Pleadings become evidence only where expressly or impliedly admitted, since the admission itself is evidence. The application was therefore dismissed with costs. The decision binds lower courts on the proposition that unproved pleadings are not evidence for additional-evidence purposes.

Key legal issues

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01

Whether pleadings amount to evidence for the purposes of an application to admit additional evidence on appeal

Holding

Pleadings are not evidence; they contain averments which remain unproven until established by proof or admission.

Reasoning

The court held that pleadings contain averments of the parties whose truth is submitted for investigation. Until proved, disproved or admitted, they are not evidence on which a decision can be founded. Proof is the foundation of evidence, consistent with section 3 of the Evidence Act; averments are not made on oath and depend on evidence for proof of their contents.

p. 2
02

Whether the Ladd v Marshall conditions could justify admitting the amended pleadings

Holding

The application failed because the amended pleadings were not evidence at all and could not have influenced the judge, having been filed after judgment.

Reasoning

Counsel for the applicant relied on Denning LJ's three conditions in Ladd v Marshall. The court found it unnecessary to reach the merits of those conditions because the threshold question was whether the pleadings constituted evidence, which they did not; they also post-dated the judgment below and could not have influenced it.

p. 2

Legal principles established

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  • Pleadings are not, by themselves, evidence; averments must be proved or admitted before they can found a decision.
  • Pleadings may become evidence only where their contents are expressly or impliedly admitted, since the admission itself is evidence.
  • On an appeal from a superior court exercising original jurisdiction, the Court of Appeal has discretion for sufficient reason to take additional evidence or direct that it be taken.

Court orders

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  1. 1.The application to admit the amended pleadings as additional evidence is dismissed with costs
  2. 2.Order accordingly
On appeal from
High Court
Bankruptcy and winding-up cause; winding-up petition under the Companies Act (with related High Court Civil Case 842 of 1976)
Jurisdiction invoked
Rule 29(2) of the Court of Appeal Rules; rule 29(1)(b) power to take additional evidence on appeal from a superior court exercising original jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) (Civil Application 12 of 1978) [1978] KECA 9 (KLR)", Case Analysis (1978). Civil Appeal 31 of 1977 (application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/9/eng@1978-05-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.