5.The Application was canvassed by way of written submissions. On the part of the Appellant, he invited this Court to exercise its discretion to allow evidence so as to meet the ends of justice in that the additional evidence was inadvertently omitted before the trial Court.
6.The Appellant further argued that the introduction of the additional evidence serves to dispel any vagueness or doubt surrounding the case as it directly pertains to the primary issue at hand. It was further submitted by the Appellant that the introduction of additional evidence is to assist this Court in establishing the true sequence of events.
7.It was the Appellant’s further submission that granting the Application would serve the interest of justice as the evidence in question is necessary and crucial in arriving at a proper judicial determination regarding his alleged unfair termination. Placing reliance on the case of Mohamed Abdi Mohamud vs Ahmed Abdullahi Mohamad & 3 others (2018) eKLR, the Appellant urged that he had diligently fulfilled all the prescribed conditions in the said case.
8.On the Respondent’s part, it was submitted that the Appellant has not met the test outlined in Order 42 Rule 27 and has not demonstrated that the trial Court refused to admit the evidence now sought to be admitted. The Respondent further urged that the Appellant has not met the basic requirements set out in the case of Mohamed Abdi Mohamud vs Ahmed Abdullahi Mohamad & 3 others (2018) eKLR.
9.The Respondent further contended that the Appellant by his own admission confirmed that he was in possession of the said medical report at the time of instituting the proceedings. Citing the case of Cyrus Shakhalaga Jirongo vs Soy Developers Limited & others (2020) eKLR, it was the Respondent’s submission that even if the Court is to give the Appellant benefit of doubt, it is suspicious that while knowing he had intended to introduce the same in his bundle of documents, failed to notice that he had not produced it.
10.The Respondent further submitted that despite the Appellant knowing the existence of the said document, never attempted to obtain another copy from the doctor who had prepared it after realizing he had misplaced the same.
11.It was the Respondent’s further submission that the medical report the Appellant seeks to adduce is not credible. Pointing out the inconsistency in the dates in the medical report and the date the Appellant was required to appear before the police, the Respondent argued that the same demonstrates an attempt by the Appellant to mislead the Court by presenting evidence that is not credible.
12.The Respondent further argued that the application to introduce the medical report is an attempt by the Appellant to patch up the weak points in his case as he did not produce any evidence to prove that he was tortured by the police into making a confession.
Analysis and determination
13.Having considered the Application, the Respondent’s Grounds of Opposition as well as the submissions by both parties and the authorities relied on, to my mind, the singular issue for determination is whether the Court should grant leave to the Appellant to adduce additional evidence.
14.The Application is grounded on Section 78 of the Civil Procedure Act which provides for powers of an appellate Court in appeals from a subordinate Court. The Section provides as follows:(1)Subject to conditions and limitations as may be prescribed, an appellate court shall have power –a)to determine a case finally;b)to remand a case;c)to frame issues and refer them for trial;d)to take additional evidence or to require the evidence to be taken;e)to order a new trial.(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.
15.I also find Order 42 Rule 27 of the Civil Procedure Rules, 2010, relevant. It provides as follows:1.The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if—(a)the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or(b)the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.(2)Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.
16.The Supreme Court in Mohammed Abdi Mohamud vs Ahmed Abdulahi Mohamad & 3 Others  eKLR laid down guidelines for admission of additional evidence before appellate courts in Kenya. The guidelines were set out as follows:
17.The Appellant in the instant Notice of Motion seeks to produce a medical report which he says was misplaced while he was relocating from his Nairobi Home to Kakamega. According to the Appellant, the said medical report will substantiate his contention that he was subjected to severe torture compelling him to provide a coerced confession.
18.Ordinarily, the medical report the Appellant seeks to adduce at this stage, is a document that ought to have been in his possession. In this case, the Appellant has not satisfied this Court that despite reasonable diligence, he could not have obtained he said medical report. This is moreso noting the significance he says it has on the outcome of his case. As a matter of fact, the Appellant has not stated that he was unable to obtain the said medical report despite reasonable diligence.
19.If anything, he avers in his Supporting Affidavit that he was in error in failing to produce the medical report. According to the Appellant, the error was inadvertent and non-intentional. In his submissions, the Appellant has termed the omission as an oversight.
20.What I gather from the foregoing, is that failure by the Appellant to adduce the medical report he now seeks to adduce, was not on account of the fact that the same was out of his reach and he could not have been obtained the same with reasonable diligence for use at the trial, rather that he overlooked its adduction. Clearly, this falls outside the guidelines for admission of additional evidence before an appellate court.
21.On this issue I align myself to the holding by the Court of Appeal in the case of Wanje & others vs Sakwa & others (1984) KLR 275, thus: “the requirement for reasonable diligence is meant to discourage litigants from leaving until the appeal stage all sorts of material which should properly have been considered by the trial court.”
22.The Appellant further avers in his Supporting Affidavit that he intended to produce the said medical record from the word go at the trial Court. However, I note that the Appellant’s list of documents before the trial Court, merely states in general terms, “medical records” as part of his intended exhibits. He then proceeded to exhibit three copies of sick sheets. He did not specifically mention the medical report, he now seeks to adduce at this stage.
23.Further, when cross examined at the trial Court regarding the existence of evidence to support his assertion that he confessed upon being tortured by the police, he indicated that he had no evidence of the said torture. As a matter of fact, he did not state let alone suggest that he had misplaced the medical report constituting his evidence that he was tortured.
24.In light of the foregoing, I cannot help but conclude that the Appellant is now seeking to adduce the said medical report as an afterthought and in a bid to strengthen his appeal.
25.In the case of Wanje & others vs Sakwa & others (supra), the Court of Appeal observed as follows:
26.Over and above, it is notable from the record that the Appellant was required to present himself before the DCIO Langata on 14th October, 2019. He admitted as much during cross examination. However, it is notable that the medical report he now seeks to adduce is dated 9th October, 2019 and therein, it is stated that the Appellant appeared at the said medical facility on 9th October, 2019. The medical report proceeds to state that the Appellant reported of being tortured by the police from 2nd October, 2019. If the Appellant’s version is to be believed, it is only logical that his appearance at the medical facility, would have tallied with his appearance before the police. Indeed, the inconsistences in the dates, cast doubt on the credibility of the medical report dated 9th October, 2019, which the Appellant now seeks to adduce.
27.Bearing in mind the circumstances of this case, the applicable law and the guiding principles, it is the finding of this Court that the Appellant has not made a case to warrant admission of additional evidence at this stage. Accordingly, the Application dated 16th March, 2023, is disallowed with an order that each party will bear their own costs.