Watuku v Industrial & Commercial Development Corporation (Civil Appeal (Application) E206 of 2022) [2024] KECA 934 (KLR)
The bottom line
#The Court of Appeal refused a former employee's bid to introduce new documents on appeal, confirming that appeals cannot be used to patch gaps left at trial.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of additional evidence on appeal
The application for leave to adduce additional evidence was refused because the applicant did not satisfy any of the Mohamed Abdi Mohamed principles; the documents could have been obtained and produced before the trial court with reasonable diligence
The court restated the rule 31(1) power and the Torino and Mohamed Abdi Mohamed guidelines, then tested each document: the board minutes were obtainable with reasonable diligence as the applicant had previously produced other board minutes; the overtime matrix was self-prepared and of unverifiable authenticity; the cause lists and the replying affidavit had no probative value on the collusion allegation, the affidavit date being explained as an error. An unsuccessful litigant cannot patch gaps in his case on appeal.
Alleged collusion and pre-meditation of the trial court's judgment
The allegation that the respondent knew the outcome of the petition before delivery of judgment, based on a replying affidavit dated 14th December 2021, was far-fetched; the court accepted the respondent's explanation that the date was an error
The applicant bore the burden of showing that the affidavit dated 14th December 2021 was actually filed before judgment on 20th December 2021. In the absence of such evidence, the court was prepared to accept the respondent's sworn explanation that the date was erroneous and that the affidavit was filed after judgment. The cause lists therefore had no probative value.
Represented litigant's inability to obtain documents
A litigant who had legal representation before the trial court cannot claim he was unaware of documents his advocate ought to have known to obtain and produce
The court distinguished the applicant's in-person appearance before the appellate court from his representation before the trial court, holding that his advocate ought to have known which documents to obtain and produce and their probative value. He did not demonstrate the difficulties experienced in obtaining or producing each document.
Legal principles established
#- The guidelines in Mohamed Abdi Mohamed are not necessarily conjunctive; an applicant for additional evidence on appeal must substantially comply with them
- Under the Court of Appeal Rules, the Court may, in its discretion and for sufficient reason, take additional evidence on appeal or direct that it be taken by the trial court
- Additional evidence on appeal will be admitted only where it could not have been obtained by reasonable diligence before and during the hearing, would have had an important influence on the result, and is credible
Court orders
#- 1.The notice of motion dated 14th April 2024 is dismissed
- 2.Costs of the application are awarded to the respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Petition No. 128 of 2018
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; rule 29 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watuku v Industrial & Commercial Development Corporation (Civil Appeal (Application) E206 of 2022) [2024] KECA 934 (KLR)", Case Analysis (2024). Pending appeal from Employment and Labour Relations Court Petition No. 128 of 2018 (motion within appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/934/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.