(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.
3. Order a new trial
The power to order a new trial is intertwined with the power of review.
Power to order a new trial
Usually this power is used in a situation where the entire trial was considered on misconceived fact or upon the wrong law and therefore it would not be possible for the appellant court to justifiably reverse, vary or set aside that decision. In other words, it is the way the appellate court looks at the way the case was conducted.
The appellate court is supposed to re-examine the decision of the lower court and decide whether it was proper or whether the judges were in fact making a proper decision. And so if the court is not able to make that assessment, because the court was given the wrong law or the wrong facts or the case was conducted in such way that the appellate court cannot act on, then it will just order a new trial. That is, the trial will be heard as if no case had previously been brought before the court. And I think the best example is the East African Television Network v KCC. It is a very useful decision. What happened was that the lower court proceeded on the wrong law or completely omitted to recognize a relevant law. In fact I remember in that decision the Court of Appeal reprimanded both the lawyers for having failed on their part. The Court of Appeal said, even if the judge failed, the lawyers should not have failed in bringing the correct law to the attention of the judge. These were very senior lawyers. I will not mention them because it might be defamatory… That in fact comes up, the power of the appellate court to order a new trial.
Also you will see in you supplementary list of authorities there is a whole topic on the ordering of new trials and you should be able to look at it.