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Court of AppealDismissedNot stated in the judgment (application dated 6th August 2024)

Mjengo Limited v Bakery, Confectionery, Food Manufacturing & allied Workers Union (Civil Appeal (Application) 630 of 2019) [2026] KECA 424 (KLR)

Court of Appeal
6 March 2026
SKS. Gatembu KairuAMA.O. Muchelule
2,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused Mjengo Limited's attempt to introduce new forgery evidence on appeal because it waited too long without a good reason.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on a notice of motion dated 6th August 2024 by Mjengo Limited seeking leave under Rule 31 of the Court of Appeal Rules, 2022 to adduce additional evidence on appeal - a Forensic Document Examination Report dated 3rd June 2024. The applicant wished to show that signatures on check-off forms of 2011, used to procure its consent to a Recognition Agreement with the Union, were forged. The superior court (Ongaya, J.) had, in a judgment of 29th March 2019, upheld the Recognition Agreement, declined to revoke it on jurisdictional grounds (revocation being vested in the National Labour Board under section 54(5) of the Labour Relations Act), dismissed the suit and awarded costs of Kshs.100,000, and later directed the parties to negotiate a CBA - the order the applicant challenges on appeal. The Union opposed, arguing the report was a belated attempt to fill evidentiary gaps and re-litigate forgery allegations pleaded but never particularised at trial, that the applicant as custodian of employment records under section 74 of the Employment Act always had the documents, and that some signatory employees had since left its employment, causing prejudice. Applying the Supreme Court's principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed and Francis Oyatsi v Nzoia Sugar Company Ltd, the Court held the report could have been obtained with due diligence and that the unexplained delay of 13 years after the check-off forms, and years after judgment and the filing of the appeal, was fatal. It cautioned the interlocutory bench against touching the merits of the appeal. The application was dismissed with costs to the respondent. The ruling was delivered under Rule 33(3) following the demise of F. Ochieng, with an apology for the delay in delivery.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant is deserving of leave to adduce additional evidence (a Forensic Document Examination Report) on appeal

Key legal issues

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01

Whether the applicant satisfied the principles for admission of additional evidence on appeal

Holding

The application failed because the applicant did not demonstrate due diligence and did not explain the long delay in procuring the forensic report.

Reasoning

The Court applied the Supreme Court's principles in Mohamed Abdi Mahamud, requiring that additional evidence be directly relevant, credible, capable of influencing the outcome, and not obtainable with reasonable diligence at trial. The applicant deposed no difficulties encountered and showed no diligence in obtaining a report on check-off forms in its possession since 2011. The report was procured 13 years after the forms were submitted and about 4-5 years after judgment and the filing of the appeal, without explanation. The Court, applying Francis Oyatsi v Nzoia Sugar Company Ltd, held that unexplained long delay justifies refusal of the discretionary relief.

p. 5

Legal principles established

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  • Additional evidence on appeal may only be admitted where it could not with reasonable diligence have been obtained for use at trial; unexplained long delay is a significant factor against the exercise of the discretion.
  • A bench determining an application for additional evidence must not delve into the merits of the main appeal, which is for the bench seized of the hearing of the appeal.

Court orders

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  1. 1.The application dated 6th August 2024 seeking leave to adduce additional evidence is dismissed
  2. 2.The applicant shall pay the respondent the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority
AM
majority
On appeal from
Employment and Labour Relations Court
Not stated (related suit ELRC Cause No. 1844 of 2017 mentioned)
Jurisdiction invoked
Rule 31(1)(b) and Rule 33(3) of the Court of Appeal Rules, 2022

Relief refused

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Leave to adduce additional evidence on appeal, being a Forensic Document Examination Report dated 3rd June 2024 with annexures

The evidence could have been obtained with due diligence; the application was brought after inordinate, unexplained delay of 13 years after the check-off forms and years after judgment and filing of the appeal

p. 5

Costs

Costs follow the event. The respondent shall be paid costs of the application by the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where there is a long delay, like in this case, and the same has not been reasonably explained, the Court will decline to exercise its discretion favourably.
p. 5Delay in applications for additional evidence on appeal
We find that the proposed additional evidence could have been discovered with due diligence.
p. 5Failure of the reasonable-diligence test
Consequently, the application fails, and it is hereby dismissed. Costs follow the event. The respondent shall be paid costs of the application by the applicant.
p. 5Final orders and costs
the bench seized with the hearing and determination of an application of this nature should refrain itself from delving into the merits and demerits of the main appeal.
p. 5Limits of an interlocutory bench

Issues in the judgment

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minor

The ruling states it is delivered pursuant to Rule 33(3) following the demise of F. Ochieng, implying he was a member of the bench, but only two judges (Kairu and Muchelule) sign the judgment and the coram does not list him.

minor

The reproduced passage from Mohamed Abdi Mahamud contains garbled numbering, jumping from 'a)' and 'c.' into '80.' and then 'b.', indicating a transcription error in the judgment.

minor

Internal inconsistency on delay: the applicant's pleading is described as approximately five years after the appeal was filed, while the Court's finding states four years post filing.

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, "Mjengo Limited v Bakery, Confectionery, Food Manufacturing & allied Workers Union (Civil Appeal (Application) 630 of 2019) [2026] KECA 424 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 6th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/424/eng@2026-03-06

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