Manono v Sava Builders Limited (Appeal E005 of 2022) [2023] KEELRC 1828 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the NHIF data summary qualifies as additional evidence admissible on appeal
It does not; the evidence was not fresh, was obtainable with due diligence, was sought to be attached to submissions contrary to procedure, and is aimed at filling gaps exposed at trial.
The court found the appellant had applied at trial to attach the documents to submissions, which was properly declined because attaching documents to submissions denies the other party an opportunity to challenge them. The full printout could with due diligence have been obtained, and the application in substance challenges the trial court's ruling without appealing or seeking review. The Supreme Court's criteria in Kanyuira v Kenya Airports Authority, expanding Ladd v Marshall, were not met.
Whether the application is an abuse of court process
Yes; it is a cunning appeal against the trial court's January 24, 2022 ruling disallowing the filing of additional documents, without exercising the right of appeal or seeking review.
The respondent demonstrated that the application was no more than an appeal against the trial court's ruling, and the appellant had not exercised his right of appeal within the stipulated time. The court agreed that the proper remedies were appeal or review of that ruling, making the present application an abuse of process and unmerited.
Legal principles established
#- A party who sought to introduce evidence at trial in a procedurally improper way and was refused must pursue appeal or review of that refusal rather than seek admission of the same evidence on appeal; an application to adduce such evidence on appeal is an abuse of court process.
- Additional evidence on appeal must be fresh and such that it could not with reasonable diligence have been obtained for use at the trial, per the Supreme Court's expanded Ladd v Marshall test.
Court orders
#- 1.The application is dismissed
- 2.Costs of the application to the respondent
- 3.Parties to take directions for expeditious hearing and determination of the appeal
- On appeal from
- Magistrates' Court (trial court before Hon Kasavuli, PM)
- Jurisdiction invoked
- Order 42 rules 27 & 28, Order 51 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manono v Sava Builders Limited (Appeal E005 of 2022) [2023] KEELRC 1828 (KLR)", Case Analysis (2023). Not stated in the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1828/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.