Kenya Airways Plc v Henry Owino Obonyo & 1 other
The bottom line
#Kenya's Court of Appeal allowed Kenya Airways to introduce new evidence on appeal, confirming the strict Supreme Court test for admitting late evidence in Kenyan courts.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to adduce additional evidence on appeal should be granted
Leave was granted because the intended evidence - the KCAA letter of 8th February 2021 confirming the 2nd respondent's employment - was relevant and met the Supreme Court's criteria in Mohamed Abdi Mahamad.
The Court applied the Mohamed Abdi Mahamad test governing additional evidence on appeal. It noted that the trial court had declined review despite earlier KCAA and Jubba Airways letters, and that the new KCAA confirmation would bear on the finding that the 2nd respondent could not secure alternative employment, a basis for reinstatement. The Court deliberately refrained from fuller analysis of the evidence's weight so as not to embarrass the bench that will hear the appeal.
The governing principles for additional evidence on appeal
The Court restated and adopted the Mohamed Abdi Mahamad criteria as the governing framework, including relevance, influence on the result, reasonable diligence, credibility, voluminousness, fairness and due process, wilful deception, avoidance of gap-filling, and proportionality and prejudice.
The Court set out verbatim the eleven principles from the Supreme Court's decision in Hon. Mohamed Abdi Mahamad vs Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR and stated that it would consider and determine the application against those factors. These principles now bind parties and lower courts seeking or assessing applications to admit additional evidence on appeal.
Legal principles established
#- An applicant seeking to adduce additional evidence on appeal must satisfy the Mohamed Abdi Mahamad principles, including direct relevance, influence on the result, inability to obtain the evidence with reasonable diligence at trial, credibility, and that the evidence is not being used to fill gaps or patch up a weak case.
Court orders
#- 1.The applicant's notice of motion dated 3rd March 2021 seeking leave to adduce additional evidence in the appeal is allowed
- 2.The costs of the application shall be in the appeal
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 1515 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the ELRC ruling; the motion is an interlocutory application in the pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Airways Plc v Henry Owino Obonyo & 1 other", Case Analysis (2024). Civil Application (Employment and Labour Relations Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1459/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.