Manga v Prime Bank Limited (Civil Appeal (Application) 563 of 2019) [2024] KECA 850 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a former employee use his criminal acquittal as new evidence on appeal after he skipped the original trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for admission of additional evidence on appeal was met
It was not. The evidence could have been procured with reasonable diligence had the applicant participated in the trial; his default disqualifies him; and the application was lodged five months after the judgment, amounting to unexplained inordinate delay.
The court applied the Mohammed Abdi Mohamud principles. The applicant himself filed the suit but elected not to participate: his adjournment application was refused on 15th May 2018, his suit was dismissed, he did not appeal that dismissal, and he also failed to attend the hearing of the counterclaim on 22nd October 2018. Allowing him to introduce the criminal acquittal now would permit him to fill gaps and retry the case. The application, filed five months after the criminal judgment, was also unexplained inordinate delay.
Whether an acquittal in a criminal case on the same facts binds or influences the outcome of a civil dispute
No. The standards of proof in criminal and civil proceedings are separate and distinct, and one cannot make a finding on behalf of the other.
The applicant argued that because he was acquitted of theft and fraud charges, where the standard of proof is higher than in civil proceedings, he ought to be absolved in the civil counterclaim. The court rejected this, holding that the separate standards of proof mean a criminal acquittal does not automatically determine civil liability. The respondent's counterclaim could stand independently of the criminal outcome.
Legal principles established
#- Additional evidence on appeal is governed by rule 31 of the Court of Appeal Rules and will be admitted only for 'sufficient reason', applying the guidelines in Dorothy Nelima Wafula and the principles in Mohammed Abdi Mohamud, including that a party unsuccessful at trial may not use further evidence to make a fresh case on appeal.
- A finding in a criminal matter does not automatically absolve or render a person liable in a civil matter, because the standards of proof are separate and distinct.
- A party who wilfully fails to participate in trial proceedings will not be permitted to use additional evidence on appeal to obtain a second chance to litigate; such conduct cannot be sanitized lest there be no end to litigation.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC No. 1208 of 2014
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rule 31 (formerly rule 29) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manga v Prime Bank Limited (Civil Appeal (Application) 563 of 2019) [2024] KECA 850 (KLR)", Case Analysis (2024). Not stated in judgment (Motion dated 15th February, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/850/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.