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Court of AppealDismissedPending appeal from Employment and Labour Relations Court Petition No. 128 of 2018 (motion within appeal)· [2024] KECA 934 (KLR)

Watuku v Industrial & Commercial Development Corporation (Civil Appeal (Application) E206 of 2022) [2024] KECA 934 (KLR)

Court of Appeal
2 August 2024
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Musinga, P., Asike-Makhandia and Nyamweya, JJ.A.) delivered on 2nd August 2024 on a Notice of Motion dated 14th April 2024 brought under Article 159(2)(d) of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act and rule 29 of the Court of Appeal Rules, 2010. The applicant, a former employee of the respondent appearing in person, sought leave to adduce additional evidence on appeal against the dismissal by Nduma Nderi, J. of the Employment and Labour Relations Court (Petition No. 128 of 2018) of his petition alleging violation of fair labour practices. He also asked the Court to recognize unpaid salary of Kshs.162,084.12 for FY 2016/2017 and to expedite the application to enable him travel to India for medical treatment, claiming he was a person with disabilities. The respondent opposed, contending the board minutes were obtained without lawful authority, the overtime matrix had no foundation, and the affidavit dated 14th December 2021 bore an erroneous date. Applying rule 31(1) and the guidelines in Mohamed Abdi Mohamed and Torino Enterprises, the Court held the applicant failed to satisfy any of the principles: the documents could have been obtained with reasonable diligence, the overtime matrix was self-prepared, the collusion allegation was far-fetched, and the application was an attempt to fill gaps in a dismissed suit. The motion was dismissed with costs to the respondent. The appeal remains pending. No separate opinions; the bench was unanimous.

Key legal issues

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01

Admissibility of additional evidence on appeal

Holding

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

Reasoning

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.

p. 6
02

Alleged collusion and pre-meditation of the trial court's judgment

Holding

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

Reasoning

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.

p. 5
03

Represented litigant's inability to obtain documents

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 14th April 2024 is dismissed
  2. 2.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules, 2010Rule 29 (and 29(1)(b))
  • Court of Appeal RulesRule 31(1)
  • Constitution of Kenya, 2010Articles 26, 28, 40, 41, 43 and 47 (as invoked in the petition)

Cases cited (3)

  • Attorney General v Torino Enterprises Limited
    [2019] eKLR
  • Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson
    [2017] eKLR
  • Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed & 3 others
    [2018] eKLR
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

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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, "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.