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ELRCDismissedCivil Suit No 1904 of 2019 (appeal) - application dated 5/11/2023· [2024] KEELRC 1682 (KLR)

Amuiri Investments Limited v Aswani (Employment and Labour Relations Appeal E092 of 2021) [2024] KEELRC 1682 (KLR)

High Court of Kenya
4 July 2024
1,796 words in judgment
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The bottom line

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The High Court refused an employer's bid to add new documents on appeal, confirming appeals cannot be used to fix a weak trial case.

What this practically means

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Executive summary

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This is a ruling of the High Court (Mathews Nderi Nduma, J) on a notice of motion dated 5/11/2023 in an appeal against the decision of the Chief Magistrates Court at Milimani in Civil Suit No 1904 of 2019 delivered on 9/8/2021. The appellant sought leave to call and produce additional documentary evidence on appeal - a staff register extract, a letter of appointment of the respondent's successor, correspondence, a letter of transfer and NSSF statements - contending the documents were not available at trial, would settle disputed issues on the scope of the respondent's employment and service pay, and would cause no prejudice. The application was anchored on section 78 of the Civil Procedure Act and Order 42 Rule 27(1) of the Civil Procedure Rules. The respondent opposed, arguing the documents were within the employer's custody under sections 10(7) and 74 of the Employment Act, that the application admitted a weak case below, and that admitting the documents would reopen the hearing and prolong litigation. The court applied Jackson Kaindi Musau, Wanjia v Sakwa and the Supreme Court's principles in Mohammed Abdi Mohammed, holding that additional evidence must not be used to fill gaps or patch up weak points, and that an employer could have obtained these records with minimal diligence at trial. The court found the appellant had failed to satisfy the governing principles and dismissed the application with costs.

Key legal issues

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01

Whether additional evidence should be admitted on appeal

Holding

The application fails because the appellant did not meet the Mohammed Abdi Mohammed principles; the documents were readily available upon minimal diligence and the appellant, as employer, is the custodian of employment records under sections 10(7) and 74 of the Employment Act

Reasoning

The court applied Order 42 Rule 27(1) and the Supreme Court guidelines in Mohammed Abdi Mohammed. It found the staff register, letters and NSSF statements were documents the employer could readily have obtained at trial. The appellant gave no explanation for their absence, and the attempt was aimed at patching weak points, an impermissible purpose under the rule.

p. 5

Legal principles established

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  • The power to admit additional evidence on appeal must be exercised sparingly and is not for removing lacunae or filling gaps in evidence
  • A party unsuccessful at trial must not use additional evidence to make a fresh case on appeal

Court orders

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  1. 1.The application dated 5/11/2023 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 78
  • Civil Procedure RulesOrder 42 Rule 27(1)
  • Employment Act 2007Section 10(7)
  • Employment Act 2007Section 74

Cases cited (3)

  • Jackson Kaindi Musau v Chairman of BoG of Kitheini Secondary School and 2 others
    [2013] eKLR
  • Wanjia and others v Sakwa and others
    [1984] KLR 275
  • Mohammed Abdi Mohammed v Ahmed Abdulahi Mohammed and 3 others
On appeal from
Chief Magistrates Court at Milimani
Civil Suit No 1904 of 2019
Jurisdiction invoked
Section 78 of the Civil Procedure Act Cap 21 and Order 42 Rule 27(1) of the Civil Procedure Rules

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, "Amuiri Investments Limited v Aswani (Employment and Labour Relations Appeal E092 of 2021) [2024] KEELRC 1682 (KLR)", Case Analysis (2024). Civil Suit No 1904 of 2019 (appeal) - application dated 5/11/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1682/eng@2024-07-04

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