[2009] KECA 393 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT NAIROBI

Civil Appeal (Appli) 317 of 2000

JAMES MWANGI NGANGA....................................................................................APPLICANT/ APPELLANT

AND

KENYATTA UNIVERSITY COUNCIL......................................................................................1ST RESPONDENT

DR. ONESMUS K. OLE MOIYOTCHAIRMAN, KENYATTA UNIVERSITYCOUNCIL.......2ND RESPONDENT

VICE CHANCELLOR –KENYATTAUNIVERSITY................................................................3RD RESPONDENT

PROF. GEORGE S. ESHIWANI..............................................................................................4TH RESPONDENT

LAWRENCEM. MUNGAI........................................................................................................5TH RESPONDENT

(An application for leave to amend grounds of appeal in an appeal against the ruling and order of the

High Court of Kenya at Nairobi (Visram, C.A.) dated 23rd October, 2000

in

H.C.Misc. Application No. 1724 of 1999)

********************************

RULING OF THE COURT

We have before us a convoluted application, not just because of the manner it is drawn up, but also in the presentation of it made by learned counsel for the applicant Mr. Riitho.

The application dated 29th April, 2008 is filed within the main appeal and runs into 143 pages. It invokes the following provisions of the law:

Rules 29, 42 and 44 of the Court of Appeal rules.

Section 3 of the Appellate Jurisdiction Act.

On the basis of those provisions, the applicant sought the following orders: -

“1. THAT the appellant do be given leave to file new documentary evidence copies (sic) which are annexed to the supporting affidavit to introduce new documentary evidence of what happened to Civil Application No. NAI. 317 of 2000 (156/2000 UR) which was application for stay of execution of orders dated 23rd October, 2000 which are subject to this Civil appeal and which was withdrawn on 15th February, 2001 after the Respondents executed the orders of 23rd October, 2000 on 31st December, 2000 leaving no orders to be stayed under civil application No. NAI. 317 of 2000 (156/2000 UR).

2. THAT the appellant do be granted leave to introduce new evidence necessitated by the judgment in civil Appeal No. 336 of 2005 dated on 24th December, 2007 and which has interpreted the law affecting the issues in this suit and also has given guidelines of what any wrongfully dismissed employee who has been out of employer’s employment for long time would expect to get as orders of the court.

3. THAT the appellant do be granted leave to amend grounds of appeal dated 29th November, 2000 by adding three more grounds and also to amend prayers by adding more prayers to accommodate the possible Court Orders in view of the Court of Appeal judgment and orders in Civil appeal No. 336 of 2005 dated 24th December, 2007 which orders are likely to be made in this civil appeal and Originating Motion Miscellaneous Application No. 1724 of 1999 in case the appellant would succeed.

4. THAT all grounds of appeal dated 29th November, 2000 as consolidated on 3rd March, 2004 and as amended by this Notice of Motion details set out in them to be considered as part of submissions of the appellant and they do be considered by this Honourable court when considering the judgment but leave do be granted for the appellant because of civil appeal No. 336 of 2005 judgment dated 24th December, 2007 which is subject to more (sic) less the same material facts and laws in this suit to address the court on the following six grounds covering the nine consolidated grounds and all the seventy two main grounds of civil appeal (sic): -

(i)What was the lawful compulsory or mandatory retirement age for the appellant as at 30th June, 1998 in accordance with Kenyatta University Act Cap 20 (c) and its statutes or regulations in force on 22nd September, 1997?

(ii)Did the learned Honourable Judge err in facts and law in determining the issues he had framed in the way he determined them in his ruling dated 23rd October, 2006?

(iii)Was the purported mandatory retirement of the appellant by the respondents at the age of sixty (60) on 30th June, 1998 lawful or unlawful?

(iv)What remedy if any would the appellant have in view of the respondents letters dated 22nd September, 1997, 1st June, 1998, affidavit of Professor M. s. Rajab sworn on 12th November, 19999, Dr. M.N. Etyang’s affidavit sworn on 11th January 2000; and 19th February, 2000 and the letter dated 22nd December, 2000 terminating the application’s employment with the respondents as at 31st December, 2000 without paying the appellant his terminal pension benefits for all the years he had worked from 1st December 1972 to 31st December 2000 if the appellant is declared to have been unlawfully compulsorily retired on 30th June 1998 in view of judgment in Civil Appeal No. 336 of 2005 dated 24th December, 2007?

(v)Does the ruling dated 23rd October 2000 show that the learned Honourable Judge did consider both the Chamber Summons Application and Originating Motion Miscellaneous Application No. 1724 of 1999 dated 29th December, 1999 which left the trial Judge with no issues to be tried?

(vi)Can the Court of Appeal apply the Appellate Jurisdiction Act Cap 9 Section 3, Court of Appeal Rule 1 (2), principle of regarding first appeal as a retrial and determine the whole suit and give final orders based on the Civil Appeal No. 336 of 2005 judgment with the relevant adjustments to suit the appellants’ special circumstances i.e the appellant headed Library Sciences Bachelors and Masters degrees teaching programs Department under the faculty of Education, the appellant never accepted variation of his legal status and also unbiased interpretation of Kenyatta University Act Cap 210 (1) Section 2 (1) definition of a Lecturer and Section 16 (1) definition of Academic Staff and internal memo dated 29th April 1996 and then bring to an end this suit by giving final orders in respect of the Chamber summons application dated 29th December 1999 and Originating Motion Miscellaneous Application No. 1724 of 1999 dated 29th December, 1999 based on principles set out in Judgment in the civil Appeal No. 336 dated 24th December, 2007?

5. THAT the granting of the orders applied for in this Notice of Motion do deem the drafts annexed to have been filed and served and the hearing of the Civil Appeal do continue as scheduled “

At the hearing of the application, Mr. Riitho withdrew prayer (2), properly so, after failing to justify its basis or relevance. The prayer purported to seek the introduction of new evidence when, in truth, it merely related to a decision of this Court which may be cited as an authority at the hearing of the appeal or before the superior court. He also abandoned prayer (4) since the issues raised therein are based on the Court of Appeal decision, the pursuit of which he had withdrawn in prayer (2). Prayer (5) is consequential in nature and Mr. Riitho made no submissions on it. That left prayers (1) and (3) for consideration and we now proceed to do so.

Prayer (1) invokes rule 29 of the rules of this Court which donates the power to admit additional evidence in appeals. In construing that rule however, this Court has set clear principles which an applicant must satisfy before the court’s discretion can be exercised in his favour. There must be sufficient reason established for receipt of such further evidence and it must be especially shown that the new evidence could not have been obtained with reasonable diligence for use at the trial and that it was of such weight that it was likely in the end to affect the court’s decision. Citing a commentary on a similar provision in Mulla on the Code of Civil Procedure, this Court stated: -

“.................this rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case on appeal. There would be no end to litigation if the rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”

- See Mzee Wanjie & 93 others v A.K. Sakwa & 3 others [1982 – 88] 1 KAR at page 465, 466 per Chesoni Ag. JA (as he then was). The same reasoning obtains from English decisions and this court has followed the decisions in Ladd v Marshall [1954] 1 WLR 1489 and Skone v Skone [1971] KLR 812 which laid out the following principles: -

“(a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(b)The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

(c)The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

Those principles were applied by this Court in the Mzee Wanjiecase (supra) and in JudithDeborah CaveShaw v FrancisRobert Shaw, Civil Appl. No. NAI. 361/2005 (ur).

Has the applicant satisfied those principles to warrant the grant of prayer (1)?

The new evidence intended to be introduced is a record of a Civil Application No. Nai. 317/2000 (156/2000 UR) filed in this Court on 7th November, 2000 under rule 5 (2) (b) seeking orders for stay of execution of the orders of the superior court made on 23rd October, 2000. The orders of the superior court were nonetheless executed on 31st December, 2000, thus overtaking the civil application which the applicant then withdrew on 15thFebruary, 2001. It becomes apparent at once, that such evidence was not available or intended to be used at the trial before the superior court and it is not clear how it becomes additional evidence for purposes of the appeal. Perhaps a brief background to the application will contextualise the issue.

James Mwangi Ng’ang’a, the applicant, had worked as an employee of Kenyatta University (“the University”) at various levels as a Librarian since December, 1972. By 1996, he was designated as the Librarian and therefore part of the “academic staff” whose retirement age was 60 years. In that year however, the University Senate made recommendations to the University Council that the retirement age for academic staff be raised to 75 years and the Council approved that recommendation. The Council however, apparently limited that benefit to “Lecturers and Professors”. When the applicant reached the age of 60 in June, 1998, the University retired him but re-engaged him on contract as the Librarian. The contract was to expire on 30th June, 2000.

The applicant then decided to challenge the decision by the University Council to retire him at the age of 60 and he filed a Judicial Review application in the superior court on 29th July, 1999, being HCMC No. 929 of 1999. That suit was still pending when the applicant also filed an originating motion before the superior court on the basis of the same facts asserting that his constitutional rights under section 82 of the Constitution of Kenya were breached, that is to say, the Council in restricting the extension of retirement age of 75 years to “Lecturers and professors” had discriminated against him since the extension ought to have applied to all “academic staff” as recommended by the senate. The originating motion was filed on 29th December, 1999 and is still pending hearing before the superior court although, as we shall see, Mr. Riitho thinks otherwise. It enjoins not only the University but also the Chairman of the Council in person, the Vice Chancellor in person, and the advocate who advised the University to retire the applicant.

Contemporaneously with the filing of the originating motion, the applicant took out a chamber summons seeking the following substantive order: -

“THAT the Respondents herein, particularly the Kenyatta University Administration, Council, Vice-Chancellor, Deputy Vice-Chancellors, Registrars, their servants and/or agents do be hereby restrained by temporary injunction from interfering with the Applicant’s duties as Librarian of Kenyatta University; his emoluments, his monetary allowances, his quiet stay in the university compound, his quiet enjoyment of the Applicant and his family within the Kenyatta University grounds until the hearing and final determination of this constitutional reference in the form of Originating Motion under section 82 and 84(1) of the Constitution of Kenya.”

That was the interlocutory matter argued before Visram J. who gave his considered ruling on 23rd October, 2000 dismissing the application and thus provoking Civil Appeal No. 317 of 2000 which should have been heard by now if it was not for the various interlocutory matters raised by the applicant. In dismissing that application Visram J. was of the firm view that the applicant had not established a prima facie case with a probability of success which is the first test in the leading authority of Giella v Cassman Brown [1973] EA 358. He held the view that the University was within its legal rights to limit the age enhancement benefit to the two categories of its academic staff; that the University was right to retire the applicant at the age of 60 years in accordance with his contract of employment; that the applicant did not enjoy any security of tenure; that breach of contract of personal service cannot be redressed by the equitable remedies of injunction and specific performance, damages being the proper remedy; that the originating motion was filed in abuse of court process since there was still before the court, undecided, a similar suit based on the same or similar facts, in contravention of section 6 of the Civil Procedure Act; and finally, that section 84 which was invoked in the originating motion was not applicable since section 82 (5) of the Constitution provides exception to section 82 (1).

Interim injunctory relief had been granted pending the hearing and determination of that chamber summons but was discharged when the ruling was delivered on 23rd October, 2000. It is common ground that the applicant’s services were thereafter terminated with effect from 31st December, 2000 before his application for stay of execution could be heard in this Court.

To return to prayer (1), Mr. Riitho submitted that the admission of the record of the application made before this Court will assist the Court to appreciate the reasons why the applicant was retired. As stated earlier, and as correctly submitted by learned counsel for the respondents, Mr. Kibe, that application and the documentation that goes with it came long after the decision of the superior court and it is difficult to see the relevance of it in an application for additional evidence. If such material becomes relevant at the resumed hearing of the originating motion in the superior court, then it can be adduced in evidence and there would be no prejudice to the applicant. We decline to grant prayer (1) as sought.

As for prayer (3), rule 44 of the rules of this Court is invoked. Ordinarily that would be a straightforward prayer because the Court is fairly liberal with applications for amendment of documents. But Mr. Riitho made a startling confession. It was this: - In his view, Visram J did not merely determine the chamber summons before him but proceeded to determine the originating motion on merits even before it was argued. Similarly this Court can also determine the issues raised both in the chamber summons and the originating motion thus obviating the need to return to the superior court upon determination of the interlocutory appeal. The intended amendments would thus enable this Court to achieve that end. In support of that proposition, Mr. Riitho reminded us that, by dint of section 3 of the Appellate Jurisdiction Act, Cap 9, this Court is clothed with the same jurisdiction as the High Court and can apply the same law as applies in the High Court, for the purpose of hearing and determining appeals. So that, this Court can perfectly call for a matter pending before the superior court and apply the procedures which that court could have applied in the determination of the case. With respect, the construction of that provision of the law by Mr. Riitho is not only warped but totally inappropriate for application to this Court.

This Court is a creature of statute and it can only determine appeals from the High Court. Section 64(1) of the Constitution and section 3(1) of Cap 9 spell out that jurisdiction. There are also numerous decisions of this Court which have pronounced on the limits of the Court’s jurisdiction. See for example Jasbir Singh Rai & 3 others v. Tarlocham Singh Rai & 4 others, Civil Appl. NAI. 307/2003 (UR). The power, authority and jurisdiction can only be exercised: “for all purposes of and incidental to the hearing and determination of any appeal.” This Court will only be seized of jurisdiction in any matter where a notice of appeal has been filed under rule 74 of the rules of the Court. The notice of appeal filed in this matter is stated to be in respect of “the whole of the ruling and orders made by the superior court, Visram J, on 23rd October, 2000 in respect of the chamber summons application dated 29th December, 1999”. That is the only appeal before us. There has been no decision made on the originating motion which underpinned the chamber summons, simply because the motion has never been heard, the belief by Mr. Riitho to the contrary notwithstanding. This Court cannot simply call up the originating motion for hearing and determination before it! It would be absurd. We agree with Mr. Kibe in that respect that on jurisdictional grounds, the amendments sought cannot be made. Furthermore, as correctly submitted by Mr. Kibe, the memorandum of appeal as it is, offends rule 84 of the rules of this court as it is unduly argumentative and narrative. The further amendments sought in terms of the annexed draft would further compound the appeal.

All in all, we are of the view that the appeal as it stands is capable of argument on the basis of the existing grounds and we decline to grant prayer (3) as sought.

The application is devoid of merit and we order that it be and is hereby dismissed with costs.

Dated and delivered at Nairobi this 13th day of February, 2009.

R.S.C. OMOLO

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JUDGE OF APPEAL

P.N. WAKI

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JUDGE OF APPEAL

D.K.S. AGANYANYA

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR