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ELRCDismissedNot stated in the extract (Civil Appeal from Mariakani SRMCC No. 262 of 2018)· [2023] KEELRC 1405 (KLR)

Kaluworks Limited v Mkala (Appeal 10 of 2019) [2023] KEELRC 1405 (KLR)

Court of Appeal of Kenya
8 June 2023
MMM. Mbarũ
1,586 words in judgment
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The bottom line

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Kenya's Court of Appeal refused new evidence in an appeal because the parties had already settled the underlying dispute, making the appeal pointless.

What this practically means

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Executive summary

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The respondent, Mwatumbi Maradi Mkala, applied under Section 1A and 3A of the Civil Procedure Act and Rule 29(1)(b) and (2) of the Court of Appeal Rules, 2010 for leave to introduce further evidence — his affidavit sworn February 21, 2020 — and to cross-examine the appellant, Kaluworks Limited, in an appeal against the ruling of the SRM's Court at Mariakani dated May 2, 2019 in Case No. 262 of 2018, in which the trial court had found the suit not sub judice. The appellant opposed, pointing out that the related Mombasa Cause No. 441 of 2018 had been settled by a consent dated July 1, 2022 and adopted by the court, and that admitting the affidavit would expose it to double liability as the matter had become res judicata. The court noted that under Section 78(1) of the Civil Procedure Act an appellate court may take additional evidence, guided by the Supreme Court's principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR. Applying those principles, the court held that the settlement of the subject matter in Cause No. 441 of 2018 — in which the respondent was a party and was paid — rendered the appeal moot, and the proposed evidence had no foundation, there being no cross-appeal. The court also held that a change of advocates is not sufficient cause to introduce new evidence on appeal. The application dated February 6, 2020 was declared overtaken by the consent, the appeal was declared spent, and each party was ordered to bear its own costs. Judgment delivered at Mombasa on June 8, 2023 by M. Mbarũ, Judge.

Key legal issues

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01

Whether additional evidence may be introduced on appeal

Holding

The application for additional evidence fails because the appeal has become moot following the parties' settlement; the proposed evidence would serve no purpose, there being no cross-appeal

Reasoning

Section 78(1) of the Civil Procedure Act gives an appellate court discretion to take additional evidence, guided by the Supreme Court's principles in Mohamed Abdi Mahamud. Applying those principles, the core issue of the appeal — sub judice/res judicata — was overtaken by the consent settlement of July 20, 2022 in SRMCC No. 441 of 2018, in which the respondent was a party and received payment. Allowing the affidavit would risk double recovery and serve no foundation, as there is no cross-appeal.

p. 3

Legal principles established

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  • An appeal is rendered moot and spent where the subject matter has been settled by consent adopted by the court, and additional evidence cannot be admitted to prosecute a moot appeal
  • Change of advocates is not sufficient cause to introduce new evidence on appeal; grievances against an advocate lie outside the appeal

Court orders

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  1. 1.The application dated February 6, 2020 is overtaken by the consent dated July 1, 2022 adopted as an order of the trial court
  2. 2.The appeal is declared spent
  3. 3.Each party to bear own costs
On appeal from
Senior Resident Magistrate's Court, Mariakani
SRMCC No. 262 of 2018
Jurisdiction invoked
Court of Appeal Rules, 2010, Rule 29(1)(b) and (2); Section 78(1) 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, "Kaluworks Limited v Mkala (Appeal 10 of 2019) [2023] KEELRC 1405 (KLR)", Case Analysis (2023). Not stated in the extract (Civil Appeal from Mariakani SRMCC No. 262 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1405/eng@2023-06-08

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