Manga v Prime Bank Limited (Civil Appeal (Application) 563 of 2019) [2024] KECA 850 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a former employee use his criminal acquittal as new evidence on appeal after he skipped the original trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to adduce additional evidence (the judgment of the Chief Magistrate's Court in Kibera Criminal Case No. 719 of 2011) on appeal
- 2.Whether the applicant satisfied the threshold of 'sufficient reason' under rule 31 of the Court of Appeal Rules, as developed in Wanjie v. Sakwa and Mohammed Abdi Mohamud
- 3.Whether the acquittal in the criminal case compels a different outcome in the civil counterclaim
- 4.Whether there was inordinate and unexplained delay in bringing the application
Key legal issues
#Whether the threshold for admission of additional evidence on appeal was met
It was not. The evidence could have been procured with reasonable diligence had the applicant participated in the trial; his default disqualifies him; and the application was lodged five months after the judgment, amounting to unexplained inordinate delay.
The court applied the Mohammed Abdi Mohamud principles. The applicant himself filed the suit but elected not to participate: his adjournment application was refused on 15th May 2018, his suit was dismissed, he did not appeal that dismissal, and he also failed to attend the hearing of the counterclaim on 22nd October 2018. Allowing him to introduce the criminal acquittal now would permit him to fill gaps and retry the case. The application, filed five months after the criminal judgment, was also unexplained inordinate delay.
Whether an acquittal in a criminal case on the same facts binds or influences the outcome of a civil dispute
No. The standards of proof in criminal and civil proceedings are separate and distinct, and one cannot make a finding on behalf of the other.
The applicant argued that because he was acquitted of theft and fraud charges, where the standard of proof is higher than in civil proceedings, he ought to be absolved in the civil counterclaim. The court rejected this, holding that the separate standards of proof mean a criminal acquittal does not automatically determine civil liability. The respondent's counterclaim could stand independently of the criminal outcome.
Legal principles established
#- Additional evidence on appeal is governed by rule 31 of the Court of Appeal Rules and will be admitted only for 'sufficient reason', applying the guidelines in Dorothy Nelima Wafula and the principles in Mohammed Abdi Mohamud, including that a party unsuccessful at trial may not use further evidence to make a fresh case on appeal.
- A finding in a criminal matter does not automatically absolve or render a person liable in a civil matter, because the standards of proof are separate and distinct.
- A party who wilfully fails to participate in trial proceedings will not be permitted to use additional evidence on appeal to obtain a second chance to litigate; such conduct cannot be sanitized lest there be no end to litigation.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC No. 1208 of 2014
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rule 31 (formerly rule 29) of the Court of Appeal Rules
Relief refused
#Leave to adduce additional evidence in the form of a certified copy of the judgment in Kibera Criminal Case No. 719 of 2011
The applicant wilfully failed to participate in the trial, the evidence is an attempt to patch up weak points in his case, the criminal acquittal does not determine the civil matter, and the application was lodged after inordinate and unexplained delay
Costs
We unwaveringly dismiss the application with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant is trying to seal loopholes and retry the suit in which he willfully failed to participate. He is looking for a second chance to litigate.
the fact of a finding in a criminal dispute does not automatically absolve or hold a person liable for a dispute in a civil matter. This is because the standards of proof are separate and distinct and as such, one cannot make a finding on behalf of the other.
That, in our view amounted to inordinate delay that was not explained by the applicant. He did not seek to establish why he took so long to bring the application before us.
Having considered the application, the afidavits as well as the submissions thereto, we arrive at the inescapable conclusion that this application is wholly devoid of merit. We unwaveringly dismiss the application with costs to the respondent.
Issues in the judgment
#The judgment contains an apparent typographical/formatting error in paragraph 12 where the quotation from Attorney General v. Torino Enterprises appears truncated, and the block quotation in paragraphs 12-14 contains inconsistent paragraph numbering (paragraphs numbered 13 and 14 appear inside quotations).
The judgment refers to the respondent's counterclaim being filed in 'Nairobi ELRC No. 1208 of 2018' in the applicant's submissions, whereas the suit is elsewhere stated as Nairobi ELRC No. 1208 of 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manga v Prime Bank Limited (Civil Appeal (Application) 563 of 2019) [2024] KECA 850 (KLR)", Case Analysis (2024). Not stated in judgment (Motion dated 15th February, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/850/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.