[2016] KEHC 4139 (KLR)
The court found that admitting the new documents at the appellate stage would prejudice the respondent by denying them the opportunity to cross-examine the appellant on the evidence. However, the documents were deemed relevant to the dispute. To balance fairness and relevance, the court set aside the lower court's...
Source-derived case information.
- Citation
- [2016] KEHC 4139 (KLR)
- Parties
- Appellant: Dr. Michael Oling Wanga; Respondent: Pharmaceutical Manufacturing Company
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 668 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Admissibility of Further Supplementary Record and Disposition of Appeal
- Outcome
- Appeal allowed; lower court judgment set aside; matter remitted for retrial before another magistrate.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Admissibility of Evidence on Appeal, Supplementary Record of Appeal, Remittal for Retrial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Michael Oling Wanga
Appellant
Pharmaceutical Manufacturing Company
Respondent
Procedural Posture
Civil Appeal / Ruling on Admissibility of Further Supplementary Record and Disposition of Appeal
Legal Issues
- 1 Whether new documents introduced in the further supplementary record of appeal are admissible at the appellate stage.
- 2 Whether admitting such documents would prejudice the respondent by denying the opportunity for cross-examination.
- 3 Whether the appeal should be allowed and the matter remitted for retrial.
Ratio Decidendi
The court found that admitting the new documents at the appellate stage would prejudice the respondent by denying them the opportunity to cross-examine the appellant on the evidence. However, the documents were deemed relevant to the dispute. To balance fairness and relevance, the court set aside the lower court's judgment and remitted the matter for retrial before a different magistrate, ensuring both parties could present and challenge all evidence afresh.
Court Disposition
Appeal allowed; lower court judgment set aside; matter remitted for retrial before another magistrate.
Orders
- The appeal is allowed.
- The entire judgment of the lower court is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL APPEAL NO. 668 OF 2003
DR. MICHAEL OLING WANGA ..............................................................APPELLANT
VERSUS
PHARMACEUTICAL MANUFACTURING
COMPANY …………………………………………………………..RESPODENENT
((Being an appeal from the Judgment and decree of Senior Magistrate N.A Owino (Mrs) in CMCC No. 1720 of 2011 delivered on 11th September, 2003)
RULING
This is an appeal arising from the decision of the lower court delivered on 11th September, 2003. For some reason this appeal has been pending for quite some time. There is a record of appeal, a supplementary record of appeal and a further supplementary record of appeal.
The objection raised herein relates to the further supplementary record of appeal which is said to have introduced fresh evidence in the appeal which was not part of the original trial.
I am supposed to make a decision as to the admissibility of new documents in the further supplementary record of appeal before I move on to decide on the merits of the appeal. I know the implication of Order 42 of the Civil Procedure Rules and in particular rule 27 (1) and (2). If I were to admit the said documents as evidence at this stage considering the nature of such evidence, I shall be denying the respondent the opportunity to cross-examine the appellant on such evidence.
On the other hand, I have noted the submissions of the appellant relating to the said documents and have formed the view that had they been produced in the lower court, they would have been relevant in deciding the dispute between the parties.
Having said so, the order that commends itself in the circumstances of the case is that this appeal is hereby allowed and the entire judgment of the lower court set aside. The dispute between the parties herein shall be remitted to the lower court for retrial before another magistrate of competent jurisdiction.
Considering the age of the dispute herein, the Deputy Registrar of this court shall transmit the entire record to the Chief Magistrate within seven (7) from the date of this ruling with specific directions that the matter shall be given priority for hearing.
Costs in the cause.
Dated, signed and delivered at Nairobi this 16th Day of June, 2016.
A. MBOGHOLI MSAGHA
JUDGE