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Court of AppealDismissedCivil Appeal (Application) 109 of 2019· [2022] KECA 990 (KLR)

Kenyan Marine & Fisheries Research Institute v Okemwa

Court of Appeal
23 September 2022
AMA.K. MurgorPNP. NyamweyaJLJ. Lesiit
1,809 words in judgment
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The bottom line

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The Court of Appeal refused to let an employer introduce old salary records on appeal because it failed to explain why it hadn't produced them at trial.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Nyamweya and Lesit, JJA) on a notice of motion dated April 19, 2022 by the Kenyan Marine & Fisheries Research Institute, the appellant in a pending appeal against a judgment of the Employment and Labour Relations Court at Mombasa (Rika J.) dated July 8, 2016, which awarded the respondent, Dr. Ezekiel Nyangoya Okemwa, general damages of Kshs 53,455,592/=. The applicant sought leave under Rule 31(1)(b) of the Court of Appeal Rules, 2022 (formerly Rule 29(1)(b)) to adduce additional evidence - salary cards for 1981 to 1998 - showing the respondent earned Kshs 31,880/= monthly rather than the salary scale used to compute the award. The respondent opposed, arguing the documents were always in the applicant's custody, that the applicant did not attend trial or tender any evidence, that no explanation was offered for the delay, and that admission would prejudice him. The Court applied the Ladd v Marshall principles as summarized by Chesoni, Ag. JA in Mzee Wanjie & 93 others v A.K. Saikwa, and the Supreme Court's guidelines in Hon. Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed. It found the applicant had demonstrated neither due diligence nor the difficulties faced in obtaining records that were in its own custody as the respondent's employer, and did not dispute its non-participation at trial. The Court held the application risked a second bite at the cherry and filling gaps in the pending appeal, declined to exercise its discretion, and dismissed the motion with costs to the respondent. The main appeal remains pending; this ruling does not disturb the decision below.

Key legal issues

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01

Whether the threshold for admission of additional evidence on appeal was met

Holding

The threshold was not met; the application was dismissed.

Reasoning

The Court applied the Ladd v Marshall principles as summarized in Mzee Wanjie and the Mohamed Abdi Mahamud guidelines. The Applicant, the Respondent's employer, offered no evidence of the difficulties faced or due diligence undertaken to obtain the salary cards, which were in its own custody and control. The Applicant also did not dispute that it failed to attend or tender evidence at trial. Allowing the evidence risked a second bite at the cherry and filling gaps in the pending appeal.

p. 4

Legal principles established

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  • Leave to adduce additional evidence on appeal is discretionary and requires demonstration that the evidence could not have been obtained with reasonable diligence, would probably have an important influence on the result, and is apparently credible.
  • A party who did not participate at trial and whose records were in its own custody cannot use additional evidence to fill gaps or set out a new case on appeal.

Court orders

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  1. 1.The Notice of Motion application dated April 19, 2022 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 29(1)(b)
  • Court of Appeal RulesRule 31(1)(b), (2), (3), (4)

Cases cited (3)

  • Mzee Wanjie and 93 others vs A. K. Saikwa and others
    (1982-88) 1 KAR 462

    Principles guiding the appellate court's discretion to receive further evidence, as summarized by Chesoni, Ag. JA.

  • Hon. Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamed and 3 Others
    [2018] eKLR

    Guidelines for admission of additional evidence before appellate courts.

  • Ladd v Marshall
    [1954] 1 WLR 1489

    Original source of the three principles on receiving further evidence on appeal.

On appeal from
Employment and Labour Relations Court at Mombasa
Mombasa ELRC No. 186 of 2013
Jurisdiction invoked
Rule 31(1)(b) of the Court of Appeal Rules, 2022 (formerly Rule 29(1)(b) of the Court of Appeal Rules, 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenyan Marine & Fisheries Research Institute v Okemwa", Case Analysis (2022). Civil Appeal (Application) 109 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/990/eng@2022-09-23

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