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ELRCDismissedNot stated in the judgment· [2023] KEELRC 478 (KLR)

Twaweza Apparel [EPZ] Limited v Kahindi & another (Appeal 80 of 2021) [2023] KEELRC 478 (KLR)

Employment and Labour Relations Court
23 February 2023
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to hear new evidence on appeal because the party could have produced it during the original case.

What this practically means

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Executive summary

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The Appellant, an objector in attachment and sale proceedings before a subordinate court, moved the Employment and Labour Relations Court at Mombasa, by Notice of Motion dated September 16, 2022, for leave to adduce additional evidence on appeal from the trial court's ruling of August 26, 2021 dismissing its objection to execution of a decree against the 2nd Respondent (the judgment debtor). The evidence sought comprised an I&M Bank payment advice dated 15/7/2022 (USD 84,575.65 rent), an internal transfer of ksh 19,000,000 dated 3/12/2020, a receipt dated 9/12/2020, Single Administrative Documents for imports and exports, and logbooks for seven vehicles, together with leave to file a supplementary affidavit. The application was anchored on Section 78(1)(d) of the Civil Procedure Act, Rule 38 of the ELRC (Procedure) Rules 2016, Article 50 of the Constitution and Sections 3A, 1A and 1B of the Civil Procedure Act. The 1st Respondent opposed, contending the documents were in the Appellant's possession when it instituted the objection proceedings and that their late introduction was prejudicial. Applying the Supreme Court's principles in Mohamed Abdi Mahamud, Nzei J held that the Appellant failed to show the documents could not have been obtained with reasonable diligence; the 2020 documents predated the objection proceedings yet were never produced, and the payment advice post-dated the impugned ruling. Admitting the evidence would fill gaps in the Appellant's trial case, which had failed for want of proof of payment of the stated consideration for a bare Deed of Assignment. The application was dismissed with costs.

Key legal issues

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01

Whether the additional evidence sought meets the Mohamed Abdi Mahamud threshold

Holding

It does not; the Appellant failed to show the documents could not have been obtained with reasonable diligence or were not within its knowledge, and some documents post-dated the impugned ruling.

Reasoning

The internal transfer and receipt dated 3/12/2020 and 9/12/2020 existed about five months before the Objector proceedings were instituted, yet were not produced in the trial court. The I&M Bank payment advice is dated 15/7/2022, almost a year after the ruling appealed against. The Appellant did not explain where the documents were or why they were not produced earlier, and the application was filed long after directions on the appeal had been given.

p. 5
02

Whether admitting the evidence would fill gaps in the Appellant's case

Holding

Yes; admitting it would allow the Appellant to patch up deficiencies in its trial evidence and would be highly prejudicial to the 1st Respondent.

Reasoning

The Appellant's objection failed in the trial court because it produced only a bare Deed of Assignment without proof of payment of the stated consideration. Under the Mohamed Abdi Mahamud principles, additional evidence must not be utilised to fill gaps in evidence. Producing the payment documents now, without explanation for their earlier absence, would permit precisely that, and their credibility could be called into question.

p. 6
03

The procedural basis for the application

Holding

The ELRC (Procedure) Rules 2016 are silent on admission of additional evidence on appeal, justifying recourse to Section 78(1)(d) of the Civil Procedure Act.

Reasoning

The application was brought under Section 78(1)(d) of the Civil Procedure Act, Rule 38 of the ELRC (Procedure) Rules 2016, Article 50 of the Constitution and Sections 3A, 1A and 1B of the Civil Procedure Act. The court noted its own Rules are silent on additional evidence on appeal and confirmed its settled practice of resorting to the Civil Procedure Act and Rules thereunder in such situations.

p. 3

Legal principles established

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  • This Court may invoke the Civil Procedure Act and Rules made thereunder where its own Rules are silent on a matter of procedure.
  • The governing principles for allowing additional evidence on appeal are those laid down by the Supreme Court in Mohamed Abdi Mahamud -vs- Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR.
  • An Objector in attachment proceedings must produce proof of payment of consideration and of transfer of ownership of the proclaimed goods; a bare Deed of Assignment is insufficient.

Court orders

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  1. 1.The Appellant's Notice of Motion dated September 16, 2022 is dismissed with costs
  2. 2.Orders accordingly
On appeal from
Subordinate court (trial court)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act, Rule 38 of the Employment and Labour Relations Court (Procedure) Rules 2016, Article 50 of the Constitution, Sections 3A, 1A and 1B of the Civil Procedure Act

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, "Twaweza Apparel [EPZ] Limited v Kahindi & another (Appeal 80 of 2021) [2023] KEELRC 478 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/478/eng@2023-02-23

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