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Court of AppealDismissedApplication dated 10th September, 2021 (Civil Appeal)

Odhiambo v Coca-Cola Central, East & West Africa Business Unit Ltd (Successor in title to Coca-Cola East and Central Africa Division Limited) (Civil Appeal (Application) 577 of 2019) [2024] KECA 1664 (KLR)

Court of Appeal of Kenya
22 November 2024
4,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let an employee add new documents to her appeal, confirming appellate courts rarely accept evidence that could have been produced at trial.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, P., Gatembu Kairu and Mativo, JJA) delivered on 22nd November 2024 on an application by Clarice Odhiambo, the appellant in an employment appeal against Coca Cola East Africa, for leave to adduce additional documentary evidence under sections 3A and 3B of the Appellate Jurisdiction Act and rule 31(1)(b) of the Court of Appeal Rules, 2022. The underlying appeal challenges the ELRC judgment of O Makau, J dated 15th March 2019, which found her redundancy unlawful and awarded her approximately Kshs 11.1 million as compensation. She sought to introduce two bundles: documents in the respondent's exclusive possession allegedly supplied only in 2020 (including her P9 form, terminal benefits pay slip, PAYE returns and provident fund statement, plus 'without prejudice' correspondence), and pleadings and filings generated in the respondent's post-judgment stay application between December 2019 and November 2020. Applying the Ladd v Marshall test as adopted in Mzee Wanje v AK Saikwa and refined by the Supreme Court in Mohamed Abdi Mahamud and in Jirongo v Soy Developers, the court held that none of the documents qualified as 'new' evidence: the pre-judgment documents were procurable with due diligence, the post-judgment pleadings did not exist at trial and could not be 'newly discovered', and the pension-related materials fall outside the superior court's jurisdiction and are the subject of live arbitration proceedings. The application was dismissed with costs to the respondent. The ruling reiterates that admission of additional evidence on appeal is discretionary, exercised sparingly, and never available to fill gaps or patch weak points in a party's case.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the documents listed in prayer (1) of the application constitute 'new' evidence that could not have been obtained with due diligence for use at the trial
  2. 2.Whether documents produced at the trial court after delivery of the final judgment (between December 2019 and November 2020) can be admitted as additional evidence on appeal
  3. 3.Whether the applicant has satisfied the threshold in rule 31(1)(b) of the Court of Appeal Rules and the Ladd v Marshall / Mohamed Abdi Mahamud principles for admission of additional evidence on appeal

Key legal issues

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01

Whether the pre-judgment documents (P9 form, pay slip, PAYE returns, provident fund statement, advocate correspondence) were 'new' evidence

Holding

They were not new; there was nothing to show they could not have been procured before judgment with due diligence, and the forwarding letters post-date the judgment.

Reasoning

The court examined each document against the due-diligence limb of the Ladd v Marshall test as refined in Mohamed Abdi Mahamud. Nothing suggested the applicant requested the P9 form, pay slip or tax returns before judgment. The correspondence on terminal dues and pension relates to a live arbitration dispute and the superior court lacks jurisdiction over pension matters. The documents therefore fail both the due diligence and relevance limbs.

p. 7
02

Whether post-judgment pleadings and court filings can be admitted as additional evidence on appeal

Holding

No; pleadings filed after delivery of judgment cannot be 'newly discovered' evidence, and the appellate court must decide the appeal on the trial record.

Reasoning

The documents in prayer two were pleadings, submissions and affidavits generated in the respondent's post-judgment stay application. The court held that categorising such pleadings as newly discovered is an oxymoron because they did not exist at trial, and the appellate court must not travel outside the record of the lower court.

p. 8
03

The proper scope of the appellate power to admit additional evidence under rule 31(1)(b)

Holding

The power exists for sufficient reasons, is exercised sparingly and only judicially, and its exceptions are confined to cases where the trial court refused to admit evidence, due diligence could not secure the evidence, or the appellate court requires it to pronounce judgment.

Reasoning

Drawing on Ladd v Marshall as adopted in Wanje v Saikwa and refined in Mohamed Abdi Mahamud and Jirongo v Soy Developers, the court restated that parties have no right to lead new evidence on appeal; the discretion is circumscribed by rule 31(1)(b) and may not be used to raise new points or re-litigate matters a party was remiss about at trial.

p. 8

Legal principles established

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  • Evidence is 'new' only if it was not adduced at trial and could not have been adduced despite due diligence; post-judgment pleadings cannot qualify as newly discovered evidence.
  • Admission of additional evidence on appeal is a discretionary power exercised sparingly, not as of right.
  • An appellate court should not travel outside the record of the lower court and additional evidence cannot be used to fill gaps or patch weak points in a case.
  • A party who had ample opportunity to produce evidence at trial but failed or elected not to do so cannot have it admitted on appeal.

Court orders

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  1. 1.The applicant's application dated 10th September, 2021 seeking leave to adduce additional documentary evidence is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
Employment and Labour Relations Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 31(1)(b) of the Court of Appeal Rules, 2022 (formerly rule 29(2) of the Court of Appeal Rules, 2010)

Relief refused

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Leave to adduce the documentary evidence listed in prayers (1) and (2) of the application

The documents were not 'new'; they were either available at trial or came into existence after judgment, and the evidence relating to pension benefits is subject to ongoing arbitration and outside the court's remit

p. 8

Costs

Application dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Evidence is "new" if - (a) it was not adduced in the original trial, and (b) it could not have been adduced in those proceedings despite the exercise of due diligence.
p. 7Definition of new evidence on appeal
We fail to understand how pleadings filed in court long after the delivery of a judgment can be said to have been in existence during the trial and they could not have been procured despite due diligence.
p. 8Post-judgment pleadings cannot be additional evidence
It is settled law that the appellate court should not travel outside the record of the lower court.
p. 8Appellate court confined to the record
Arising from our analysis of the facts, the authorities and the law, the inevitable conclusion is that the applicant’s application dated 10th September, 2021 is devoid of merit. Consequently, we dismiss it with costs to the respondent.
p. 9Final orders - dismissal of the application

Issues in the judgment

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minor

Paragraph numbering repeats; two consecutive passages are both numbered 25.

minor

The judgment inconsistently refers to the applicant in the masculine pronoun although she is named Clarice Odhiambo.

minor

The judgment cites Ladd v Marshall with two different years for the same WLR citation.

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, "Odhiambo v Coca-Cola Central, East & West Africa Business Unit Ltd (Successor in title to Coca-Cola East and Central Africa Division Limited) (Civil Appeal (Application) 577 of 2019) [2024] KECA 1664 (KLR)", Case Analysis (2024). Application dated 10th September, 2021 (Civil Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1664/eng@2024-11-22

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