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ELRCPartially AllowedNotice of Motion dated 23rd January 2024 (in an appeal; Milimani Criminal Case No. E641 of 2022 referenced)· [2024] KEELRC 1001 (KLR)

Maina v Benisa Limited (Appeal E163 of 2021) [2024] KEELRC 1001 (KLR)

Employment and Labour Relations Court
15 April 2024
JGJACOB GAKERI
2,065 words in judgment
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The bottom line

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Kenya's Employment Court refused to let a party bring new witnesses on appeal, ruling they should have gathered that evidence during the original trial.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Dr. Jacob Gakeri J on 15th April 2024, determines a Notice of Motion dated 23rd January 2024 in which the Applicant/Respondent sought leave to adduce as additional evidence the proceedings in Milimani Criminal Case No. E641 of 2022 and to call new witnesses, in proceedings described as an appeal. The application was anchored on Section 3A of the Civil Procedure Act, though the court observed the operative power is Section 78 of that Act, mirroring Rule 29(1)(b) of the Court of Appeal Rules. The applicant alleged that documents relied on by the Respondent at trial were forged, and that the criminal prosecution of the Respondent (Republic v John Ngotho Maina) - withdrawn after the applicant sought its withdrawal on humanitarian grounds of the Respondent's diabetes and high blood pressure - justified admitting the new material. The Respondent opposed, arguing indolence, inordinate delay in reporting the alleged forgery, and an attempt to fill gaps in the applicant's case. The court applied the Supreme Court's guidelines in Mohamed Abdi Mohamed and the原则 in Mzee Wanje v A.K. Saikwa, holding that although the criminal proceedings postdated the appeal, the alleged forgery could have been reported to the police at any time since 2016, and the testimony was thus obtainable with reasonable diligence. The application failed to meet the threshold and was dismissed, save that leave was granted to adduce the criminal case proceedings only. The court made no orders as to costs.

Key legal issues

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Whether leave should be granted to adduce additional evidence and call new witnesses on appeal

Holding

The application does not meet the requisite threshold; it was dismissed save for leave to adduce the criminal proceedings in Milimani Criminal Case No. E641/2022

Reasoning

The court applied the Mohamed Abdi Mohamed principles and Rule 29(1) parameters: the evidence must not be obtainable with reasonable diligence before or during the hearing, must be credible and influential on the outcome. Although the criminal proceedings arose after the appeal was filed, the applicant could have reported the alleged forgery to the police at any time since 2016-2018 employment and the 2020 filing of the suit. The evidence was thus obtainable with reasonable diligence and amounted to an attempt to revamp the case.

p. 5

Legal principles established

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  • Additional evidence on appeal may only be admitted sparingly, in exceptional circumstances, and not to enable an unsuccessful litigant to patch up weak points or fill gaps in its case

Court orders

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  1. 1.Dismissal of the Applicant's Notice of Motion dated 23rd January 2024 save for leave to adduce court proceedings in Milimani Criminal Case No. E641/2022 Republic V John Ngotho Maina
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 1B
  • Criminal Procedure CodeSection 87
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Court of Appeal RulesRule 29(1)(a) and 29(1)(b)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Independent Electoral and Boundaries Commission & another V Stephen Mutinda Mule and 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) V Nigeria Breweries PLC
    SC 91/2002
  • Mohamed Abdi Mohamed V Ahmed Abdullahi Mohamed & 3 others
    (2018) eKLR
  • Attorney General V Torino Enterprises Ltd
    (2019) eKLR
  • Dorothy Nelima Wafula V Hellen Nekesa Nielsen & another
    (2017) eKLR
  • Mzee Wanje & 93 others V A.K. Saikwa
    (1982 – 88) 1 KAR 463
Jurisdiction invoked
Section 78 of the Civil Procedure Act; application expressed under Section 3A of the Civil Procedure Act (which the court noted was misplaced)

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, "Maina v Benisa Limited (Appeal E163 of 2021) [2024] KEELRC 1001 (KLR)", Case Analysis (2024). Notice of Motion dated 23rd January 2024 (in an appeal; Milimani Criminal Case No. E641 of 2022 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1001/eng@2024-04-15

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