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 unraised 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.
3. 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.