Wilson v Imarisha Mabati Limited (Appeal E023 of 2021) [2022] KEELRC 1228 (KLR)
The bottom line
#Kenya's Employment Court allowed a party to file new documents on appeal after missing trial, because the evidence was small, relevant, and could be tested by cross-examination.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to the Applicant/Respondent to file additional documents at the appellate stage
The application substantially satisfied the criteria in Section 78 of the Civil Procedure Act and the Supreme Court's guidelines; leave was granted and the documents admitted, with liberty to cross-examine.
The court applied the Mohamed Abdi Mohamed guidelines as endorsed in Raila Odinga. The evidence sought (five documents, about five pages) was not voluminous, was directly relevant to the main issue of the nature of the employment relationship (probationary terms and their extension), was credible, and could be responded to. Prejudice was mitigated by granting the Appellant liberty to cross-examine the Respondent on the additional evidence.
Whether the disputed service of summons justified non-production of the documents at trial
The court accepted the Applicant's contention that it did not participate in the trial because it was allegedly never served, making the documents its entire defence rather than gap-filling material.
The court noted the contested issue of whether summons to enter appearance and notification of entry of judgment were served, with the Appellant relying on a process server's affidavit. The court did not conclusively resolve service but treated the documents as the Applicant's defence to the suit, observing that impact on the result was a matter for evaluation of the whole evidence on record.
Legal principles established
#- Additional evidence on appeal must meet the Supreme Court guidelines in Mohamed Abdi Mohamed: relevance, potential impact on the verdict, inability to have obtained it with reasonable diligence, credibility, non-voluminousness, and proportionality/prejudice, and such evidence is admitted sparingly and with abundant caution.
- Under Section 78 of the Civil Procedure Act, an appellate court has power to take additional evidence or to require the evidence to be taken.
Court orders
#- 1.The Applicant be and is hereby granted leave to file a bundle of documents in support of her case
- 2.The new documents be and are hereby admitted as duly filed
- 3.The Appellant is at liberty to cross-examine the Respondent on the additional evidence filed
- 4.The costs of the application shall be costs in the appeal
- On appeal from
- Lower Court (trial court) - exact court not stated
- Jurisdiction invoked
- Section 20(1) & (4) of the Employment and Labour Relations Court Act No. 20 of 2011; Sections 1A, 1B, 3, 3A and 78(1)(2) of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson v Imarisha Mabati Limited (Appeal E023 of 2021) [2022] KEELRC 1228 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated May 31, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1228/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.