Kenya Airways PLC v Lumutu & another (Civil Appeal (Application) E326 of 2020) [2024] KECA 1459 (KLR)
The bottom line
#Kenya's Court of Appeal allowed Kenya Airways to introduce new evidence on appeal, confirming the strict Supreme Court test for admitting late evidence in Kenyan courts.
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 on appeal, namely the letter dated 8th February 2021 from KCAA confirming the 2nd respondent's employment
- 2.Whether the intended additional evidence satisfies the principles set out by the Supreme Court in Hon. Mohamed Abdi Mahamad vs Ahmed Abdullahi Mohamad & 3 Others
Key legal issues
#Whether leave to adduce additional evidence on appeal should be granted
Leave was granted because the intended evidence - the KCAA letter of 8th February 2021 confirming the 2nd respondent's employment - was relevant and met the Supreme Court's criteria in Mohamed Abdi Mahamad.
The Court applied the Mohamed Abdi Mahamad test governing additional evidence on appeal. It noted that the trial court had declined review despite earlier KCAA and Jubba Airways letters, and that the new KCAA confirmation would bear on the finding that the 2nd respondent could not secure alternative employment, a basis for reinstatement. The Court deliberately refrained from fuller analysis of the evidence's weight so as not to embarrass the bench that will hear the appeal.
The governing principles for additional evidence on appeal
The Court restated and adopted the Mohamed Abdi Mahamad criteria as the governing framework, including relevance, influence on the result, reasonable diligence, credibility, voluminousness, fairness and due process, wilful deception, avoidance of gap-filling, and proportionality and prejudice.
The Court set out verbatim the eleven principles from the Supreme Court's decision in Hon. Mohamed Abdi Mahamad vs Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR and stated that it would consider and determine the application against those factors. These principles now bind parties and lower courts seeking or assessing applications to admit additional evidence on appeal.
Legal principles established
#- An applicant seeking to adduce additional evidence on appeal must satisfy the Mohamed Abdi Mahamad principles, including direct relevance, influence on the result, inability to obtain the evidence with reasonable diligence at trial, credibility, and that the evidence is not being used to fill gaps or patch up a weak case.
Court orders
#- 1.The applicant's notice of motion dated 3rd March 2021 seeking leave to adduce additional evidence in the appeal is allowed
- 2.The costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 1515 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the ELRC ruling; the motion is an interlocutory application in the pending appeal
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.
Consequently, we allow the applicant's notice of motion dated March 3, 2021. The costs of this application shall be in the appeal
We are satisfied that the intended evidence is relevant and conforms with all the requirements as set out by the Supreme Court in Hon. Mohamed Abdi Mahamad vs Ahmed Abdullahi Mohamad & 3 Others (supra).
We need not say more at this juncture lest it embarrass the bench that shall hear the appeal.
a. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
Issues in the judgment
#The judgment refers to the trial court's 'judgment of 9th October 2019' and 'judgment of Wasilwa, J delivered on 30th July 2020' in different passages; the underlying judgment date is inconsistently stated.
The case title and full appeal/civil application number are not stated on the face of the extract; the parties are identified only as 'the applicant', 'the 1st respondent' and 'the 2nd respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Airways PLC v Lumutu & another (Civil Appeal (Application) E326 of 2020) [2024] KECA 1459 (KLR)", Case Analysis (2024). Civil Application (Employment and Labour Relations Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1459/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.