James Gitahi Mwangi v Simba Colt Motors Limited [2015] KECA 700 (KLR)
The bottom line
#Kenya's Court of Appeal refused to hear new evidence on appeal because it existed at trial and no cross-appeal raised the issue.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the Rule 29(1)(b) principles for admission of additional evidence
The application failed on two independent grounds: the evidence was available at trial and could easily have been summarised and produced then, and absent a cross-appeal the evidence would not influence the result of the appeal.
The court restated the three-prong test from Joginder Auto Services Ltd v Shaffique & Another: reasonable diligence, probable important influence on the result, and apparent credibility. The applicant conceded the underlying information was before the trial court, so only a summary was new, which the trial court could have received. Further, the only pending appeal was the employer's appeal against the award; without a cross-appeal by the applicant, commission calculation was not an issue on appeal, so the evidence could not influence the outcome.
The relevance of the absence of a cross-appeal to an application for additional evidence
Rule 29(1) applies to 'any appeal'; where the only appeal is that lodged by the other party, additional evidence directed at a matter not in issue in that appeal cannot be admitted.
The court noted that the applicant had not lodged a cross-appeal, so the only appeal was the employer's appeal seeking to nullify the award in the applicant's favour. The additional evidence concerned calculation of the commission awarded to the applicant, which would only arise if the award stood and the applicant challenged its quantum. Since no such issue existed on appeal, the evidence failed the 'important influence' limb of the test.
Legal principles established
#- The Court of Appeal may, in its discretion and for sufficient reason, receive additional evidence or direct that it be taken by the trial court or a commissioner on appeal from a superior court exercising original jurisdiction.
- Additional evidence will only be admitted where the applicant shows it could not have been obtained with reasonable diligence for use at the trial, that it would probably have an important influence on the result, and that it is apparently credible.
- Evidence that was available at trial, or a summary of material already before the trial court, does not qualify as additional evidence.
- Additional evidence will not be received where, in the absence of a cross-appeal, it would not be relevant to any issue in the appeal or influence its result.
Court orders
#- 1.The Notice of Motion dated 24th October 2014 seeking to adduce additional evidence was dismissed
- 2.Costs of the application awarded to the appellant
- On appeal from
- Industrial Court at Nairobi
- Industrial Court Cause No. 448 (N) of 2009
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 29(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Gitahi Mwangi v Simba Colt Motors Limited [2015] KECA 700 (KLR)", Case Analysis (2015). Civil Appeal Application No. 120 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/700/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.