THE LAW ON PROTECTION OF TRADE SECRETS

 Introduction

A trade secret is secret information (often called confidential information) that is of economic use to a trading entity but which is not protected by patent or design registration.  It is currently settled law that a trade secret, as such, is not “intellectual property” in the presently accepted sense and that the only way trade secrets can be protected is by contractual obligation.  The Kenyan courts will typically enforce a contract protecting such information and it is accepted that a delictual claim will lie against someone who embarks on industrial espionage or breaches a fudiciary duty whereby trade secrets are acquired or disclosed by underhand means.  The question is whether this level of protection is sufficient or whether legislation is required. 

The Advantages and Disadvantages of relying on Trade Secrets:
Many businesses rely on trade secrets rather than seeking formal protection under the patent or design systems.  Examples are numerous but include the secret recipes of certain producers such as Coca Cola and Kentucky Fried Chicken and the advantages of relying on this sort of protection as opposed to patent protection can be summarised as follows:

• There are no statutory limitations on the time period as there are with patents.
• A trade secret can be maintained without the cost or effort involved in patents.
• Protection is afforded immediately whereas a patent application may take years.
• A trade secret can be established without naming any inventors, therefore there is no need to determine the proper inventor and the company need not require its inventor-employee to assign ownership of the trade secret to it, as is required with a patent application.
• Trade secrets can also be used if a product cannot be patented, if the length of time of the patent is insufficient, or if patent protection is too costly relative to the value of the invention.

The obvious disadvantages can be summarised:

• Trade secrets cannot be maintained when they can be subjected to reverse engineering by the public.
• Strict precautions must always be taken and continually enforced to maintain the confidentiality of the trade secret due to the fact that it a trade secret is discovered by legitimate means it will be lost.
• A trade secret can be patented by someone who discovers it by legitimate means.  This person can then sue the holder of the trade secret for infringing his or her patent.
• There is a possibility that a trade secret could be patented successfully by a third party who discovers it by legitimate means.  It has been suggested that it would then be possible for the patentee to sue the holder of the trade secret for infringing the patent although it does seem to me that proof of the existence of the trade secret prior to the patent date would be inadequate defence.

Treaties
Unlike copyrights, patents and trade marks there is no comprehensive international treaty or convention in force yet governing trade secrets.  Instead only brief mention is made of the topics in article 1711 of the North American Free Trade Agreement (NAFTA), the GATT agreement and the TRIPS agreement.

The North American Free Trade Agreement:
This agreement defines a trade secret as having commercial value, as not being in the public domain and for which reasonable steps have been taken to maintain its secrecy.

The GATT Agreement:
This agreement states that undisclosed information must be protected against dishonest use by others without the consent of the owner.
There is also third-party liability for misappropriation if third parties knew or were grossly negligent in not knowing that such information had been dishonestly obtained.This provides all the remedies that are available under US trade secrets law. 

The TRIPS Agreement:
This agreement requires member countries to provide effective remedies for trade secret misappropriation including injunctive relief, damages and provisional relief to prevent infringement and to preserve evidence.  In my opinion, since the Aquilian action does lie for unlawful appropriation of trade secrets,  South Africa  complies with its obligations in terms of TRIPS.

Step by step guide on drafting a Dissertation for Law Students

Introduction

A dissertation is a research paper that you write in order to receive your PhD, the highest academic degree in your field. You must write a dissertation if you want to continue your education after earning your bachelor's degree. In this article, we'll discuss how to write a dissertation with tips on how to plan and structure the work so that it meets standards for academic rigor.

Pick a topic that interests you

Before you start writing your dissertation, it's important to know what you're writing about. As a student, you are likely passionate about some area of interest and have spent time researching it. The question is: what will make this topic relevant to your future career?

If the topic doesn't interest or excite you, then there's no point of doing any research at all; it'll be wasted effort. However, if the subject does interest and excite you but doesn't seem like something that would be useful for your future career path (e.g., "How do people discover new music?"), then don't worry! You can still write up some preliminary thoughts on how those discoveries might work into your wider field experience or personal development journey as an artist/musician/etcetera

Review the literature on that topic

A literature review is a critical analysis of the existing research on a topic. It’s important because it allows you to organize your findings in a way that makes sense, and it provides context for how everything fits together. The purpose of this section is to summarize the most important findings from previous studies, so you can use them as evidence for your own research.

You may want to start out by reading through some articles or chapters from books related to your topic—but don't worry if some are irrelevant! Instead of eliminating material based on its relevance (which wouldn't be fair), try thinking about what kind of information would be useful for understanding the subject matter at hand. If an article isn't relevant enough yet still seems interesting enough that it deserves more time spent reading through it anyway (or even just skimming), then simply mark down any parts which seem relevant in order not only to gain insight into current research trends but also because these bits might later prove helpful when writing up abstracts later on down the line

Formulate a thesis or hypothesis

Thesis: A thesis describes the purpose of your study and its relation to other works. It also identifies what you want to prove or disprove, so that you can use evidence in support of your claims.

Hypothesis: A hypothesis is an educated guess about a phenomenon, but it does not necessarily have to be proven true or false. You can formulate one based on previous research or experience (for example, "The average amount of time it takes me to get ready for work is five minutes"). Your hypothesis should be supported by evidence from multiple sources; if there's only one source (like your own experience), then this isn't necessarily good enough because there's no way for anyone else outside yourself who may disagree with what happened on Monday morning last week when those two things happened at exactly 10:04 AM when I decided not go back inside after my first cupcake bite because instead I went outside where there were two dogs playing Frisbee together while their owners watched them play frisbee instead!

Write a proposal or abstract

The proposal is a summary of your dissertation and its contents. It should be written in an objective, scientific tone. Your proposal should include:

• What you intend to study, why it matters, and how you will go about doing so

• A brief introduction explaining why this topic is important or relevant for the field at large

• A description of what you plan to learn from this research project (e.g., what will be accomplished) and how it will help others (e.g., by improving health care delivery). You may also want to include some results from previous studies conducted on similar topics as possible evidence that your proposed research meets certain criteria for acceptability within academia

Write the dissertation or thesis

The dissertation or thesis should be a well-written document. It should be well-organized and supported by the research you have done in your field of study.

You may want to use different writing styles depending on what kind of audience you are trying to reach: for example, if it’s an academic journal, then it might be appropriate for formal language like “the purpose of this paper is…” But if you're writing this paper for your friends and family members who aren't academics themselves then they might appreciate something more informal like “I decided that I wanted my mommy!”

Defend the dissertation

Now that you have your dissertation, it's time to defend it. The way that you defend the work is up to you, but there are some basic guidelines:

• Find a faculty member who can be an expert witness on your topic and prepare them for their testimony at your defense.

• Prepare questions for each witness that will help them answer questions from the members of the committee who will evaluate them (the chairperson and two or three other members). You may also want to introduce other members of your committee who have expertise in related fields so they can give more context about why they think this specific piece of scholarship should be accepted as appropriate for publication in their field journals or books.

• Have someone else read through all parts of your defense before it goes into its final form so they can check over any grammar errors or typos before submitting it as part of one massive document--this is especially helpful if someone else has already submitted an earlier version!

Write a dissertation

Writing a dissertation is an incredibly complex, time-consuming and challenging process. The best way to ensure that you get it right is by following these steps:

• Write a proposal for your study. This should include an overview of the context in which you will conduct your research; any major issues/concerns related to those contexts; what questions are most important for answering those issues/concerns; how they relate back to previous work done by others on similar topics (if applicable); how these questions will be answered through this research project; a brief description of the design elements necessary for conducting this research project such as its theoretical framework, methodology(s), etc..

• Write an abstract explaining why your topic matters and how it relates back to previous work done by others on similar topics (if applicable).

• Determine whether or not there are any ethical issues involved when conducting this study so that they can be addressed prior to starting any actual data collection efforts themselves..

Conclusion

So, if you're looking to write a dissertation, here is the step-by-step guide.

KENYAN LAWS THAT REGULATE CHILD RIGHTS AND CHILD PROTECTION

1.                   The Constitution of Kenya

This is the Supreme law of Kenya; any law that is inconsistent with Constitution is null and void. Chapter Five (5) of the Constitution contains the Bill of Rights, which offers protection for the safeguards of the individual rights and freedoms for every Kenyan. These include the right to association, movement, secure protection of the law, religion and conscience, and the right to life. The Constitution however does not have the rights of children expressly spelt out or guaranteed.

2.                   The Penal Code (Cap.63 Laws of Kenya)

The Penal Code defines the Penal system in Kenya. It outlines criminal offences and prescribes penalties to them. The Penal Code protects children, in that acts and omissions, which amount to child abuse, are classified as punishable offences. These include:

a.       Sexual abuse: Offences outlined in the Penal Code- Rape, Defilement, indecent assault, incest (both by males and females) and unnatural offences.

b.      Physical Abuse: Offences include: common assault, assault occasioning actual bodily harm and grievous bodily harm.

Other offences that protect the lives of children include concealment of birth, killing of the unborn, procuration of an abortion etc.

2.1   Age of Criminal Responsibility

The Penal Code also sets an age below which a child cannot be held to be criminally responsible even when they have committed a crime. This is known as the age of criminal responsibility.

The age of criminal responsibility in Kenya is eight (8) years. This means that if a child of less than eight years performs an act or omission, which by law is defined as a crime like stealing or killing a person, he or she cannot be held responsible for the crime. Therefore, the child cannot be charged in a court of law for prosecution.

The Penal Code goes further to say that if the child is between the ages of eight (8) and twelve (12) years of age, and commits a criminal offence, then before prosecution, the court must establish whether the child understood the consequences of his/her actions. If not, then the child will not be prosecuted, but if it comes out that the child understood, then he/she will be prosecuted.

Further, the same law tells us that male children under the age of twelve (12) years are incapable of committing an offence associated with carnal knowledge or sexual intercourse. Therefore, criminal action cannot be taken against say an eleven-year-old boy who has committed the offence of rape or defilement, because the law sees him as incapable of committing such an offence.

3.                   The Evidence Act (Cap 80, Laws of Kenya).

Section 124 of the Evidence Act calls for the corroboration of the evidence of children of tender years. The above section was however amended by the Criminal Law Amendment Act of 2003 which adds the following proviso:

“provided that where a criminal case involving a sexual offense the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.”

This means that in cases of child sexual abuse, where the child is the victim, corroboration of the child’s evidence is not a must. Corroboration means independent evidence, which implicates the person, accused of a crime by connecting him with it. This means that evidence that confirms that the person charged committed the offence. Children of tender years are children under the age of ten years as is defined in the Children’ act.

4.                   Matrimonial Causes Act (Cap 152, Laws of Kenya)

This Act consolidates all the laws relating to matrimonial cases. The Act is important as it protects children in case of the dissolution of a marriage by providing for maintenance and custody of children. Only children who are born within lawful wedlock are provided for in this Act.

5.                   Subordinate Courts (Separation and Maintenance) Act

The Act provides for children in case of judicial separation of their parents. A married woman can apply for maintenance and custody orders in a case where the husband has willfully neglected the children.

6.                   Employment Act (Cap 226, Laws of Kenya)

This Act outlines the laws governing employment and protecting employees in Kenya. The Act protects all children under the age of 16 years from employment in industrial undertaking except for internship or training. Further, the Act outlines Children’s Employment Rules, which provide for Protection of children at work.

7.                   The Children Act (Cap. 586, Laws of Kenya)

This is an Act of Parliament that provides for the rights of children and seeks to enhance the welfare of children in Kenya.

The Children’s Act (CA) was enacted for the following main reasons:

a.       To put together the provisions of the various laws that affected children;

b.      To give effect the provisions of the CRC and the African charter on the rights and welfare of the child.

The Act has XIII main parts with various provisions:

PART I: INTERPRETATION.

This part gives the legal definition of various terms, phrases and sections in the CA.

PART II: SAFEGUARDS FOR THE RIGHTS AND WELFARE OF CHILDREN

The CA provides for the rights of all children as are provided for in the CRC and the African Charter. They are as follows:

1. Inherent right to life. The Government and the family have the responsibility of ensuring the survival and development of every child.
2. Right to parental care-Every child has the right to live with and be cared for by his/her parents.
3. Right to Education- Every child is entitled to free and compulsory primary education the provision of which shall be the responsibility of the Government and the parents.
4. Right to religious education- Every child has a right to religious education. Parents have the responsibility of providing children with appropriate guidance in religious education.
5. Right to health care. – Every child has a right to health and medical care of which parents and the Government shall have the responsibility of providing for.
6. Protection from child labour and armed conflict. – Every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.
7. Children should also not be recruited in armed conflict or take part in hostilities. Where armed conflict occurs, respect for and protection and care of children shall be maintained in accordance with the law.
8. Right to Name and Nationality. – Every child has a right to a name and nationality. Where a child is deprived of his identity, the Government shall provide appropriate assistance and protection with a view to establishing his or her identity.
9. Right of Children with disabilities to be treated with dignity. Every child with a disability has a right to be treated with dignity, and to be given appropriate medical treatment, special care and education.
10. Protection from child abuse. – Every child is entitled to protection from physical, psychological, sexual, neglect and any other form of exploitation including sale, trafficking or abduction by any person.
11. Protection form harmful cultural rites. – No child should be subjected to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.
12. Protection from the sexual exploitation. – All children shall be protected from sexual exploitation, prostitution, inducement or coercion to engage in any sexual activity and exposure to pornographic materials.
13. Protection from drugs. – Every child shall be protected from the use of all drugs and from being used in their production, trafficking or distribution.
14. Leisure and recreation. – A child has the right to leisure, play and to participate in cultural and artistic activities.
15. Torture and deprivation of liberty. – No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.
16. Right to privacy. – Every child has a right to privacy subject to parental guidance.

UNDERLYING PRINCIPLES

These rights are to be practiced with the following principles:

“Best interests Principle”

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of children shall be a primary consideration.

“Non Discrimination”

No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe residence or local connection.

“The Child’s Opinion”

When working with children, it is always important to allow the child to air their views or opinions on an issue and also to ensure that the views or opinions are respected and given due weight.

“Maximum Survival and Development”

All actions affecting children should be directed in ensuring that their lives are protected and that they develop in the best possible way.

PART III: PARENTAL RESPONSIBILITY

Parental responsibility refers to the duties, rights, powers responsibilities and authority, which by law a parent of a child has over the child and the child’s property in a manner consistent with the evolving capacities of the child.

The duties include;

Maintenance of the child and provision of adequate diet, shelter, clothing, medical care, and education and guidance.

PART IV: ADMINISTRATION OF CHILDREN’S SERVICES.

National council for the Administration of Children Services

The Children Act establishes the National Council for the Administration of children’s Services, which shall have the following functions:

Exercise general supervision and control over planning, coordination of child rights and welfare activities;

To advise the Government on all aspects of child rights and welfare of children

The Act also stipulates the role and responsibilities of the Director of Children’s Services and that of the Local Authorities in safeguarding and promoting the rights and welfare of children within its area of operation

PART V: CHILDREN’S INSTITUTIONS.

This part gives provisions, guidelines on and role of institutions that may be established; two by the Government and one by persons other than the Government.

Rehabilitation School

Children’s Remand Homes

Charitable Children’s Institutions

PART VI: CHILDREN’S COURT.

Children’s Courts are established to hear the following matters:

Civil cases:

These are cases concerning parental responsibility, Custody and maintenance, guardianship, children in need of care and protection and granting judicial orders for the protection of children.

Criminal cases:

 The Court also hears cases of children who are in conflict with the law or child offenders except where a child is charged with murder or is jointly charged with an adult(s).

Other offences:

The Court also hears cases against people who have been cruel or neglectful of their children and any other offences outlined in the Act.

Children’s Courts are presided over by Children’s Magistrates appointed by the Chief Justice.

PART VIII: CUSTODY AND MAINTENANCE

Custody

This refers to the parental duties and responsibilities as relates to the actual possession of a child often given by a Court.

Who can be Given Custody?

• A parent of a child;
• A guardian;
• Any other person who applies for custody of the child but has had actual custody for three months before making the application and has the permission of the parent or guardian.

What factors are to be considered before making a custody order?

• The wishes of the child;
• The wishes of the parents, guardians, foster parents or any other persons who have had custody of the child for the past three years;
• Cultural and religious background of the child;
• Best interests of the child.

 Maintenance

Maintenance refers to the supply of the necessaries of life for a child. For children this includes adequate diet, shelter, health and medical services and education.

Who has the duty to maintain a child?

• Parents of a child who were married to each other at the time of a child’s birth;
• Parents of a child who were not married to each other at the time of a child’s birth but have subsequently gotten married;
• If the parents are not married but the father has acquired parental responsibility;
• Joint custodians of a child;
• Joint Guardians of a child.

 Any parent, guardian, custodian of a child may apply to the children’s court for maintenance orders if they have an issue to do with maintenance.

The court may order a parent to provide for a child’s upkeep but will take into consideration the financial means of those involved.

PART IX: GUARDIANSHIP

Who is a Guardian?

A guardian is a person appointed to take care of a child alone or the child and his property after the death of a parent.

PART X: JUDICIAL ORDERS FOR THE PROTECTION OF CHILDREN

These are orders that the Court can grant for the protection of children and to ensure that their welfare is enhanced.

PART XI: CHILDREN IN NEED OF CARE AND PROTECTION

These are children who include;

• Orphaned or have been abandoned or are destitute;
• Parents have been imprisoned;
• Homeless or are beggars;
• Prevented from receiving an education;
• A female child subjected to FGM or early marriage or children exposed to harmful cultural practices;
• A child exposed to domestic violence;
• Who is pregnant;
• Who is terminally ill or whose parents are terminally ill or who has a disability;
• Who have been sexually abused;
• Who are exposed to child labor.

PART XII: FOSTER CARE PLACEMENT

Foster care placement means the placement of a child with a person who is not the child’s parent, relative or guardian and who is willing to undertake the care and maintenance of that child.

A child can be taken to a foster parent through placement by the Director of Children’s Services and the manager of a charitable institution or Rehabilitation School where the child has been placed through a care order.

Who May be a Foster Parent?

• A married couple;
• A single woman aged above 25 years (but she may not foster a male child)
• A single man aged above 25 years (but he may not foster a female child)

 PART XIII: ADOPTION

Adoption vests parental rights and duties relating to a child if the adopter or the person whom the adoption order has been granted.

The Act establishes an Adoption Committee to oversee adoption issues in the country.

PART XIV: CHILD OFFENDERS.

The Act outlines ways of dealing with children who are in conflict with the law

**THE END**

The Kenyan Perspective on the Law on Appeals Generally

 Every decree may be appealed from unless barred by some law. However an appeal does not automatically lie against every order. Order 42 Rule 1 gives a long list of orders from which an appeal lies from as of right.

 

If you want to appeal on an order that is not on the list, you have to seek leave of court. When you have a judgment you extract a decree. Orders are gotten from small interim applications. You can appeal against an order.

Amendments of pleadings, appeals lie as of right. Judgement in default is appealable.

For example the Armed Forces Act if you have a decision you can appeal to the High Court. High court used to be the final court for petitions but now you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the court which made the order that is being sought to be appealed against. It should be made by Chamber Summons or orally in court at the time of making the order.

Appeals generally or the hierarchy of appeal

An appeal from the subordinate Courts

Appeals from the Resident Magistrate’s court lie to the High Court. Appeals from the High Court lie to the court of Appeal.

Appeals from the subordinate courts are heard by one judge of the high court except in certain particular cases where the Chief Justice can direct that the appeal be heard by two or more judges. Such directions may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment is received.

Where there are two judges and they disagree, under Section 60 where an appeal is heard by a court consisting of two or more judges, the appeal should be decided in accordance with the decisions of the majority of the judges. In a case of two judges with a divided opinion, the appeal should be dismissed and to prevent that they normally put an uneven number of the Judges on the bench. Section 60 says that the opinion of the majority of judges should be upheld but Order 40 says that where the court is equally divided, the Appeal should be dismissed. Section 60 will take precedent in this case. Read Githunguri case.

When a decision has failed to determine some material issues of the law

It also has something to say where it was alleged that there was substantial error or defect in the procedure.

FILING OF APPEALS

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings. The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasons why you object to the decision of the court. It is very important to make sure that your grounds are set out comprehensively because you will not be able to make submissions on any grounds not set out in your memorandum of appeal. You would have to seek the leave of the court to submit on a new ground. The court has discretionary powers and can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order 41. Section 65-69 enact the substantive law as regards fast appeals while order 41 lays down the procedure relating to it. The expression appeal and the expression memorandum of appeal denote two distinct things. The Appeal is a judicial examination by the higher court of the decision of a lower court. Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following requirements must be complied with

1. It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.
2. It must be in the format and present as a record of Appeal.
3. It must be signed by the Appellant or their Agent.
4. It must be presented to the Court or to such officer as appointed by the court.
5. The Memorandum must be accompanied by a certified copy of the decree.
6. It must be accompanied by a certified copy of the judgment unless the court dispenses with it.
7. Where the Appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court.

PREPARING A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-

1. The Pleadings;
2. The Issues – issues substantially in issue
3. The Findings thereon;
4. The Judgment and the decree and also the record of proceeding in court. (the judge erred and misdirected himself in issues raised before him)

You can only appeal on one issue. Suppose the court finds you negligent and thus liable. You can appeal on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has expired, you can apply for an extension of time to file the appeal.

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution. However the judgment debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no appeal has been filed but is intended the application for stay of execution should be made to the court that has given the order or the decree but an appeal has already been filed, the application for stay should be made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of appeal is filed.

Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 41 Rule 4 and Section 3A of the Civil Procedure Act. (Looks like a notice of motion).

The court looks at certain conditions before granting a stay of execution. The following conditions must be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.
2. That substantial loss will result to the Applicant unless such order is made.
3. Security for due performance of the decree has been given by the Applicant.

HOW THE COURT DEALS WITH THE APPEAL

Section 79 of the Civil Procedure Rules – The court has power to summarily dismiss an Appeal. The Court has the opportunity in the first instance to peruse the record of appeal and if they find there are no sufficient grounds for interfering with the decree, the court may reject the Appeal. If the court does not reject the Appeal, then it proceeds to hearing. The fact that the court has admitted your appeal does not mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for default. So just like a hearing, you are required to appear at the hearing but unlike the High Court you do not have to appear for the Hearing in person. You may find that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that case you will file a declaration in writing that you do not wish to be present in person or through an advocate. In such a case you must then file two copies of your sole arguments which you desire to submit, once you file the two copies one will be served on the respondent and the other is retained in the court file. The option is also available to the Respondent, they can file their response in writing.

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision. You can always apply to set aside an ex parte judgment but you must show sufficient cause for not appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the Respondent. Additional of parties or amendments can be done in the Court of Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to be taken;
5. Order a new trial;

The court will take various options depending on the grounds raised in the Appeal. The Appeal Court will confine you to points.

1. To determine the case finally – this power is exercised by the court where the evidence on the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally determine the case. This is the most common option of the court of appeal. It is where from the record they are able to understand the problem and determine the case. It is usually the case.

In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally determine the Appeal. In which case they will opt to remand the case.

Power to Remand the Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the evidence on record and should not be remanded for fresh evidence except in rare cases. Remanded basically means to send back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed off the case on preliminary point without hearing and recording evidence on other issues.
2. Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination. The Appellate Court may also direct what issues shall be tried in the case so remanded. Read Wambui Otieno Case by passing an order of remand the Appellate Court directs the lower court to reopen and retry the case. On remand the trial court will readmit the suit under its original number in the register of civil suits and they will proceed to determine to hear it as per the directions of the court of appeal. The court can only exercise the power to remand as set out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case. A preliminary point may be one of fact or of law. But the decision thereon must have avoided the necessity for a full hearing of the suit. For example

Preliminary Point of Law.

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do not disclose a course of action are raised at the trial court this is an example of a preliminary point of law.

Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the plaintiff is estopped from proving their case because maybe there was a prior agreement relating to the facts, again the same rule will apply that as long as the decision was based on a preliminary point, then the Court of Appeal will set aside that decision.

1. The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court to be tried. The Court of Appeal will exercise this power where the trial court did not frame issues properly or omitted to try a certain issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits. The court will frame those issues and then refer them to the lower court for them to be tried. Normally it will refer them with certain directions. The court of Appeal when they have all the issues on their bench can decide on the issues. The court of appeal frames the issues sends them back to lower court and after they are dealt with they are sent back to the court of Appeal.

4.  Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless

(i) The lower court refused evidence which ought to have been admitted;

(ii) Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce judgment;

(iii) For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a) The court of appeal may take the additional evidence itself;

(b) It may direct the original court to take the evidence;

(c) It may direct a lower court to take the evidence for it

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence which it ought to have admitted.
2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to

Admit fresh evidence. The court of appeal may find out that there is certain evidence they need to come to a final decision, they can ask for fresh evidence to be taken or they can take it themselves which is rare.

1. Order a new trial

The power to order a new trial is intertwined with the power of review.