Manono v Sava Builders Limited (Appeal E005 of 2022) [2023] KEELRC 1828 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant should be granted leave to adduce additional documentary evidence (NHIF member data summary for 2014/2015 to 2019) on appeal
- 2.Whether the application meets the threshold for admission of additional evidence on appeal, including due diligence and freshness of the evidence
- 3.Whether the application is an abuse of court process, being in substance an appeal against the trial court's ruling disallowing filing of further documents
Key legal issues
#Whether the NHIF data summary qualifies as additional evidence admissible on appeal
It does not; the evidence was not fresh, was obtainable with due diligence, was sought to be attached to submissions contrary to procedure, and is aimed at filling gaps exposed at trial.
The court found the appellant had applied at trial to attach the documents to submissions, which was properly declined because attaching documents to submissions denies the other party an opportunity to challenge them. The full printout could with due diligence have been obtained, and the application in substance challenges the trial court's ruling without appealing or seeking review. The Supreme Court's criteria in Kanyuira v Kenya Airports Authority, expanding Ladd v Marshall, were not met.
Whether the application is an abuse of court process
Yes; it is a cunning appeal against the trial court's January 24, 2022 ruling disallowing the filing of additional documents, without exercising the right of appeal or seeking review.
The respondent demonstrated that the application was no more than an appeal against the trial court's ruling, and the appellant had not exercised his right of appeal within the stipulated time. The court agreed that the proper remedies were appeal or review of that ruling, making the present application an abuse of process and unmerited.
Legal principles established
#- A party who sought to introduce evidence at trial in a procedurally improper way and was refused must pursue appeal or review of that refusal rather than seek admission of the same evidence on appeal; an application to adduce such evidence on appeal is an abuse of court process.
- Additional evidence on appeal must be fresh and such that it could not with reasonable diligence have been obtained for use at the trial, per the Supreme Court's expanded Ladd v Marshall test.
Court orders
#- 1.The application is dismissed
- 2.Costs of the application to the respondent
- 3.Parties to take directions for expeditious hearing and determination of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court before Hon Kasavuli, PM)
- Jurisdiction invoked
- Order 42 rules 27 & 28, Order 51 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Relief refused
#Leave to adduce additional documentary evidence (NHIF member data summary 2014/2015–2019) and admission of the same by way of affidavit and supplementary record of appeal
The evidence was not fresh, could with due diligence have been produced at trial, was sought to be introduced contrary to procedure, and the application is in substance a cunning appeal against the trial court's refusal - an abuse of process.
Costs
The application is dismissed with costs (of the application to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the application is hereby dismissed with costs and parties to take directions for expeditious hearing and determination of the appeal.
The Court returns that the application is indeed an abuse of Court process as it is a cunning appeal against the trial Court’s decision.
the purported new evidence is not fresh at all because with due diligence the same ought to have been produced appropriately before the trial Court in accordance with the rules of the Court.
a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in the appeal, fill up omissions or patch up the weak points in his/her case
Issues in the judgment
#The names of the parties, the case number and the lower-court case number are not stated in the extracted judgment; the parties are referred to only as 'the applicant'/'the appellant' and 'the respondent'.
The judgment identifies the respondent's counsel's replying affidavit but the body refers to the applicant interchangeably as appellant; also the decision dismissed the claim on March 10, 2022 while the hearing was January 24, 2022, both dates appearing in the grounds.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manono v Sava Builders Limited (Appeal E005 of 2022) [2023] KEELRC 1828 (KLR)", Case Analysis (2023). Not stated in the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1828/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.