ERNST & Young LLP v Capital Markets Authority & another (Civil Appeal 92 of 2017) [2019] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal refused Stanbic's bid to add new evidence in its appeal against the Capital Markets Authority, ruling post-judgment documents would make a fresh case.
What this practically means
#Executive summary
#Key legal issues
#Threshold for admission of additional evidence under rule 29(1)(b)
The Ladd v Marshall principles as adopted in Wanje v A.K. Saikwa and the Mohamed Abdi Mahamud guidelines apply: evidence must be unobtainable with reasonable diligence, influential on the result, credible, and not a means of making a fresh case or filling gaps.
The court reviewed its own precedent in Wanje v Saikwa, Republic v Ali Babitu Kololo, the Supreme Court's decision in Mohamed Abdi Mahamud, and the English authority in The National Guild of Removers & Storers, distilling that the discretionary power must be exercised sparingly and with great caution, balancing the overriding objective of doing justice against finality of litigation.
Whether post-judgment documents can be admitted as additional evidence
Documents that came into existence after the High Court judgment, and which were therefore never before the trial court, cannot ordinarily be admitted because they would make a fresh case on appeal and prejudice the respondent.
The proposed evidence related to an administrative hearing on 23 October 2017 and events up to May 2019, all after the 7 March 2017 judgment. The court held it should be wary of determining matters never placed before the High Court and that the respondent would have no occasion to counter such evidence.
Whether non-delegation under section 11A of the Capital Markets Act evidences bias
Non-delegation under section 11A does not demonstrate bias; the CMA may discharge dual mandates and delegation is discretionary, with residual powers retained under section 11A(3); in any event the delegation here was under section 14.
The court, relying on its own decision in Capital Markets Authority v Alnashir Popat, held the Authority may lawfully combine investigative and adjudicative roles; section 11A confers discretionary, not mandatory, delegation powers, so the proposed Kenol Kobil material was irrelevant to the legal question in the appeal.
Whether the alleged involvement of Mr. Reuben Boro Gitahi established bias
No foundation was laid for the belief that Gitahi participated in the show cause proceedings; the allegation was incredible, and the proposed unfair-termination judgment would not influence the appeal.
Gitahi was employed by the 1st respondent with effect from 1 August 2017, after the show cause proceedings had commenced, and there was no evidence he was involved in the investigations or proceedings; mere belief without evidentiary foundation cannot sustain an allegation of bias.
Legal principles established
#- On an appeal from a superior court exercising original jurisdiction, the Court of Appeal may, in its discretion and for sufficient reason, take additional evidence or direct that it be taken by the trial court or a commissioner.
- Post-judgment matters may only found admission of additional evidence in exceptional circumstances.
Court orders
#- 1.The application for admission of additional evidence is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya
- Nairobi Constitutional Petition No. 385 of 2016
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules (interlocutory application in a pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ERNST & Young LLP v Capital Markets Authority & another (Civil Appeal 92 of 2017) [2019] KECA 81 (KLR)", Case Analysis (2019). Civil Appeal No 92 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/81/eng@2019-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.