https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11156

Amica Savings & Credit Co-op Society Ltd v KA (Suing as the Next Friend of PAA (Minor) and as the Representative of VA (Deceased)) (Civil Appeal E085 of 2024) [2026] KEHC 11156 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11156 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E085 of 2024 JM Omido, J July 16, 2026 Between Amica Savings & Credit Co-op Society Ltd Appellant and KA (Suing as the Next Friend of PAA (Minor) and as the Representative of VA (Deceased)) Respondent Ruling 1.The Appellant’s notice of motion dated 17th December, 2024 is expressed to be brought under Section 1A, 1B, 3A 78(1)(d) and (2) of the Civil Procedure Act, Order 42 Rule 27 and Order 51 of the Civil Procedure Rules and all other enabling laws and seeks the following orders:a.That this Honourable Court be pleased to grant leave to the Applicant to file five (5) additional documents as evidence in support of its case.b.That this Honourable Court be pleased to grant leave to the Applicant to file a supplementary record of appeal.c.That the costs of this application be in the cause. 2.The grounds upon which the motion is premised are that the Applicant seeks leave to adduce additional evidence on appeal in the form of a loan application form together with its supporting documents and a chattel mortgage instrument. 3.It is contended that these documents demonstrate that the suit motor vehicle had been offered as security for a loan advanced to one of the Applicant’s members and, consequently, did not belong to the Appellant. 4.It is further contended that the proposed additional evidence is directly relevant to the issues arising in the appeal, particularly the questions of ownership of the suit motor vehicle and whether it had been charged as collateral for a loan advanced by the Applicant. 5.The Applicant further avers that the additional evidence is necessary and material to the just, fair and effectual determination of the appeal and will assist the Court in arriving at a proper resolution of the dispute. 6.Lastly, the Applicant maintains that, despite the exercise of reasonable diligence by its officers, the documents could not be produced during the trial because the Applicant underwent an institutional transition in the year 2016 involving a change of name and relocation of its offices, which affected the retrieval and availability of the documents. 7.The application is supported by the affidavit of Pius Mureithi Hiira sworn on 17th December, 2024 in which he deposes that he is the Credit Manager of the Appellant and is duly authorized to swear the affidavit in support of the application. 8.The deponent deposes that in the year 2016, the Appellant underwent an institutional transition involving a change of name from Murata Savings and Credit Co-operative Society Limited to Amica Savings and Credit Co-operative Society Limited. 9.According to the deponent, the transition also entailed the relocation of offices, changes in personnel and movement of records, resulting in the misplacement of certain documents which could not be produced during the trial before the subordinate court. 10.To demonstrate the change of name and registration, he has annexed a copy of the Certificate of Change of Name dated 13th June, 2016 marked PMH1 and a copy of the Certificate of Registration dated 13th June, 2016 marked PMH2. 11.The deponent further states that the Applicant seeks leave to adduce as additional evidence a loan application form by Festus Gitahi Gathuita dated 25th March, 2013 marked PMH3, a chattels mortgage instrument marked PMH4 and a copy of a delivery book page marked PMH5. 12.He avers that the documents annexed as PMH3, PMH4 and PMH5 are material to the determination of the appeal as they bear directly on the issues whether the suit motor vehicle belonged to the Appellant and whether it had been offered as collateral for a loan advanced by the Appellant to one of its members. 13.The deponent further states, on the advice of the Appellant’s Counsel, that this Court is constitutionally and statutorily vested with the discretion to admit additional evidence at the appellate stage where such evidence is necessary to enable the Court to effectually and completely determine the dispute before it. 14.He deposes that, despite the exercise of reasonable diligence, the documents annexed as PMH3, PMH4 and PMH5 could not be traced and produced during the trial owing to the institutional transition described in the affidavit, and that they were only discovered by the Appellant’s officers in October, 2024. 15.Lastly, the deponent avers that the admission of the additional evidence will not prejudice the Respondents, who will have the opportunity to examine the documents and respond to them during the hearing of the appeal. 16.The deponent therefore urges the Court to allow the application in the interests of justice to facilitate the fair and expeditious determination of the appeal. 17.The application is opposed by the 1st Respondent, who to that end filed a replying affidavit sworn on 17th February, 2025. 18.The 1st Respondent deposes that the Appellant was served with a notice of intention to sue on 19th February, 2018, followed by a demand letter dated 16th October, 2018, and was subsequently served with summons to enter appearance after the suit was instituted on 5th April, 2019. 19.According to the 1st Respondent, the Appellant therefore had ample opportunity to trace and produce the documents it now seeks to introduce as additional evidence. 20.The 1st Respondent further deposes that throughout the proceedings before the trial court, the Appellant never informed the court that it had misplaced documents which it considered vital to its case, nor did it seek additional time to trace and produce them. He contends that, had such an application been made, the trial court would have considered granting the Appellant an opportunity to do so. 21.The 1st Respondent avers that the Appellant failed to exercise due diligence in obtaining and producing the proposed additional evidence and has not offered a reasonable explanation for its failure to do so despite having had approximately seven years from the time it was notified of the intended claim. He therefore contends that the Appellant is guilty of laches and has failed to lay a proper basis for the Court’s exercise of its discretion to admit additional evidence on appeal. 22.The 1st Respondent further contends that the application is an afterthought brought only after judgement had been entered against the Appellant. In his view, had the Appellant genuinely considered the documents to be material to its case, it ought to have sought leave before the trial court to produce them. 23.Specifically, the 1st Respondent challenges the Appellant’s attempt to introduce the documents annexed to the supporting affidavit as PMH1, PMH2 and PMH3, maintaining that if those documents were indeed in existence, the Appellant ought to have sought sufficient time before the trial court to avail them instead of waiting until after the conclusion of the trial. 24.Lastly, the 1st Respondent deposes that the present application amounts to an abuse of the court process and will occasion prejudice to him while rewarding the Appellant’s indolence. He avers, on the advice of his Counsel, that the interests of justice require litigation to come to an end and successful litigants to enjoy the fruits of their judgements. 25.He accordingly urges the Court to decline to exercise its discretion in favour of the Appellant and to dismiss the application with costs. 26.The 2nd Respondent did not file any response to the Appellant’s notice of motion. 27.Upon directions issued by the Court, the application was canvassed by way of written submissions. In compliance with those directions, both the Appellant and the 1st Respondent duly filed and exchanged their respective written submissions, which the Court has carefully considered in determining the application. 28.In its submissions, the Appellant contends that the application is principally anchored on Section 78(1)(d) of the Civil Procedure Act, which vests an appellate court with the power to admit additional evidence or direct that such evidence be taken. It submits that the Court should exercise that jurisdiction by admitting the documents annexed to the supporting affidavit as PMH1, PMH2, PMH3, PMH4 and PMH5. 29.The Appellant submits that the annexed documents demonstrate that motor vehicle registration number KBA 897C was offered as security for a loan advanced to one Festus Gitahi Gathuita and that the Appellant was merely a financier rather than the beneficial owner of the vehicle. 30.The Appellant further submits that PMH1 (certificate of change of name) and PMH2 (certificate of registration) explain the transition from Murata Savings and Credit Co-operative Society Limited to Amica Savings and Credit Co-operative Society Limited, thereby reconciling the difference in the names appearing on the loan documents. 31.In support of the application, the Appellant relies on the decision of the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR, where the Court held that the admission of additional evidence on appeal is a discretionary remedy to be exercised only in exceptional circumstances and on a case-by-case basis. 32.It submits that the Supreme Court identified the relevant considerations to include whether the proposed evidence is directly relevant to the matter before the court and in the interests of justice; whether it is capable of influencing the outcome of the case; whether it could not have been obtained with reasonable diligence during the trial; whether it removes vagueness or doubt on the principal issues in dispute; whether it is credible; whether it is not so voluminous as to prejudice the opposing party; whether it was reasonably available during the trial; whether it discloses a prima facie case of wilful deception; whether it is intended to fill gaps or cure omissions in the evidence; whether it seeks to make an entirely new case on appeal; and whether its admission would occasion prejudice to the opposing party or undermine the expeditious disposal of litigation. 33.The Appellant submits that the principles enunciated by the Supreme Court are not to be applied conjunctively but rather flexibly on a case-by-case basis. According to the Appellant, the overarching considerations are whether a satisfactory explanation has been offered for the failure to produce the evidence at the trial, whether the proposed evidence is relevant and likely to influence the determination of the appeal and whether its admission would occasion prejudice to the opposing parties. 34.It is submitted that the present application satisfies all the principles set out in the aforesaid decision. In particular, the Appellant argues that the proposed evidence is directly relevant to the dispute, is credible, is not voluminous and will assist the Court in determining the real issues in controversy without causing prejudice to the Respondents. 35.The Appellant further submits that its defence before the trial court consistently remained that it was not the actual or beneficial owner of motor vehicle registration number KBA 897C but had merely held it as security for a loan advanced to one of its members. It therefore contends that the proposed additional evidence does not introduce a fresh case or seek to fill evidential gaps but merely corroborates the defence that had already been advanced during the trial. 36.The Appellant reiterates that in the year 2016, it underwent an extensive institutional transition involving a change of name, relocation of offices, changes in personnel and movement of records, during which a number of physical documents were misplaced. It submits that while the member’s loan statement was available electronically and was produced before the trial court, the documents annexed as PMH3, PMH4 and PMH5 existed only in physical form and were only traced by its officers in October, 2024. 37.The Appellant explains that PMH3 is the loan application form dated 25th March, 2013 by Festus Gitahi Gathuita seeking a loan of Ksh.700,000/- and offering motor vehicle registration number KBA 897C as security; PMH4 is the chattels mortgage instrument over the same motor vehicle; and PMH5 is a delivery book extract showing that on 9th December, 2013, the borrower collected the vehicle’s logbook together with the transfer form. It submits that because PMH3 and PMH4 bear the former name of the Appellant, PMH1 and PMH2 are necessary to establish the Appellant’s change of name and continuity of corporate identity. 38.Lastly, the Appellant rejects the allegation of laches, submitting that it was not indolent but acted promptly upon discovering the documents in October, 2024 by instructing Counsel to file the present application. It therefore urges the Court to find that the proposed evidence is necessary for the just determination of the appeal, was unavailable despite the exercise of reasonable diligence, does not seek to patch up weak points in its case and should accordingly be admitted. 39.On his part, the 1st Respondent submits that the application is devoid of merit and constitutes an afterthought brought in bad faith after the Appellant failed before the trial court. He urges the Court to decline the invitation to admit the proposed additional evidence and to dismiss the application with costs. 40.The 1st Respondent relies on the decision of the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (supra) and submits that the admission of additional evidence on appeal is an exceptional remedy to be exercised sparingly and only where the Applicant demonstrates, inter alia, that the evidence is directly relevant to the issues in dispute, would influence the outcome of the case, could not have been obtained through the exercise of reasonable diligence during the trial, is credible, is not intended to fill evidential gaps or patch up a weak case and that its admission would not occasion undue prejudice to the opposing party. 41.It is submitted that the Appellant has failed to satisfy the threshold laid down in the foregoing decision. According to the 1st Respondent, although the Appellant alleges that the documents were misplaced during the transition from Murata Savings and Credit Co-operative Society Limited to Amica Savings and Credit Co-operative Society Limited, it never informed the trial court that such documents existed but were unavailable, nor did it seek additional time to trace and produce them. The 1st Respondent contends that had such a request been made, the trial court would have been able to consider it. 42.The 1st Respondent further relies on Rongai Tiles & Sanitary Wares Limited v Commissioner of Domestic Taxes [2022] KEHC 555 (KLR) for the proposition that an Applicant seeking to adduce additional evidence must demonstrate the efforts undertaken to retrieve the documents and explain how they were eventually recovered so as to establish that reasonable diligence was exercised. He submits that a bare assertion that documents were discovered or stumbled upon is insufficient to satisfy the requirement of due diligence. 43.The 1st Respondent submits that the Appellant has not explained how the alleged misplaced documents were eventually recovered in October, 2024, nor has it demonstrated the steps taken over the approximately seven years that the suit remained pending to trace the documents. He therefore argues that the Appellant has failed to establish that the documents could not have been produced during the trial despite the exercise of reasonable diligence. 44.The 1st Respondent further submits that the explanation that the documents were merely misplaced does not constitute an exceptional circumstance warranting the exercise of the Court’s discretion but instead demonstrates indolence. He contends that the Appellant was aware of the existence of the documents, particularly because it had already produced the borrower’s loan statement during the trial, and ought at that stage to have informed the trial court of the existence of the additional documents and sought time to retrieve them. 45.It is further submitted that the present application is an attempt by the Appellant to cure omissions in its evidence and to strengthen a case that failed before the trial court. According to the 1st Respondent, the Appellant is impermissibly seeking to relitigate the dispute under the guise of introducing fresh evidence. 46.In support of that proposition, the 1st Respondent relies on Mzee Wanjie & 9 Others v A. K. Saikwa & Others [1982–88], where the Court held that the power to admit additional evidence is not intended to enable an unsuccessful litigant to patch up weak points in its case, fill omissions or lacunae in the evidence, or make out a fresh case on appeal, and that additional evidence should only be admitted where it is genuinely needful. 47.The 1st Respondent also relies on Dorothy Nelima Wafula v Hellen Nekesa Nielsen and Paul Fredrick Nelson [2017] eKLR for the proposition that additional evidence may only be admitted upon sufficient reason being shown, namely that the evidence could not have been obtained through reasonable diligence before or during the trial, would probably have an important influence on the outcome of the case and is credible. 48.Lastly, the 1st Respondent submits that allowing the application would unfairly prejudice him by reopening litigation that has already been concluded before the trial court, contrary to the principle of finality in litigation. He therefore urges the Court to find that the Appellant has failed to satisfy the established principles governing the admission of additional evidence on appeal and to dismiss the application with costs. 49.I have carefully considered the notice of motion, the affidavits filed in support of and in opposition thereto, the rival submissions by Counsel and the authorities relied upon. In my view, the application raises the following issues for determination:1.Whether the Appellant has satisfied the legal threshold for the admission of additional evidence at the appellate stage.2.Who should bear the costs of the application. 50.I will proceed to address the two issues. 51.The jurisdiction of an appellate court to admit additional evidence is donated by Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules. That jurisdiction, however, is not at large. It is a discretionary jurisdiction to be exercised sparingly and only in appropriate cases. 52.The governing principles are now well settled following the decision of the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR (supra), where the Court emphasized that additional evidence may only be admitted in exceptional circumstances and on a case-by-case basis. 53.The Court further set out the considerations to be borne in mind, including whether the evidence is directly relevant to the issues before the court, whether it could not have been obtained with reasonable diligence for use at the trial, whether it is credible, whether it is intended to fill gaps or patch up weak points in a party’s case and whether its admission would occasion prejudice to the opposite party. 54.Although the Appellant contends that the proposed documents were misplaced during its transition from Murata Savings and Credit Co-operative Society Limited to Amica Savings and Credit Co-operative Society Limited in the year 2016, I am not persuaded that this explanation satisfies the requirement of reasonable diligence. 55.The transition admittedly occurred approximately two years before the notice of intention to sue was served upon the Appellant in February, 2018 and about three years before the suit was instituted in April, 2019. From then until the delivery of judgement by the subordinate court, the Appellant had ample opportunity to trace the documents or, at the very least, bring their existence to the attention of the trial court. 56.Significantly, there is no evidence that during the pendency of the proceedings before the subordinate court the Appellant informed the trial court that material documents had been misplaced, sought an adjournment or applied for additional time to retrieve them. Had such an application been made, the trial court would have been afforded the opportunity to exercise its discretion appropriately. Instead, the Appellant proceeded with the hearing on the evidence then available and only sought to introduce the documents long after judgement had been rendered against it. 57.Equally unpersuasive is the Appellant’s assertion that the documents were only discovered in October, 2024. Apart from that bare averment, no explanation has been offered as to the efforts made over the intervening years to locate the documents or the circumstances under which they were eventually recovered. 58.The Court is therefore left without any factual basis upon which it can conclude that the Appellant exercised the reasonable diligence contemplated by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (supra). 59.I find the reasoning in Rongai Tiles & Sanitary Wares Limited v Commissioner of Domestic Taxes [2022] KEHC 555 (KLR) particularly persuasive. In that case, the Court held that an Applicant must do more than merely assert that documents were subsequently found; it must explain the efforts undertaken to retrieve them and demonstrate that, despite due diligence, the documents could not have been obtained earlier. Such an explanation is conspicuously absent in the present application. 60.The Court must equally guard against permitting the appellate process to become an avenue through which unsuccessful litigants improve their cases after judgement. As was observed by the Court of Appeal in Mzee Wanjie & 9 Others v A. K. Saikwa & Others [1982–88], the power to admit additional evidence is not intended to enable a party to fill omissions, patch up weak points in its case or make out a fresh case on appeal. 61.Likewise, in Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] eKLR, the Court reiterated that an Applicant must demonstrate, among other things, that the evidence could not have been obtained through reasonable diligence before or during the hearing and that it would probably have had an important influence on the outcome of the case. 62.While I accept that the proposed documents may have some relevance to the issues in controversy, relevance alone is not the governing test. The Appellant was required to satisfy all the essential considerations that justify the exceptional exercise of the Court’s discretion. In particular, it was incumbent upon the Appellant to demonstrate that the documents could not, despite the exercise of reasonable diligence, have been produced before the trial court. On the material before me, that burden has not been discharged. 63.Moreover, the Appellant’s defence before the trial court was that it merely held the suit motor vehicle as security for a loan advanced to one of its members. That position was canvassed before the subordinate court. The additional documents now sought to be introduced are intended to strengthen that defence after the trial has concluded. In the circumstances of this case, admitting the documents would have the effect of allowing the Appellant to reinforce its evidentiary case after an adverse judgement, contrary to the principles governing the admission of additional evidence on appeal. 64.I am therefore not satisfied that the Appellant has demonstrated exceptional circumstances warranting the exercise of this Court’s discretion under Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules. I accordingly find that the Appellant has failed to satisfy the established principles governing the admission of additional evidence on appeal. 65.On the issue of costs, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event unless the Court, for good reason, orders otherwise. The 1st Respondent opposed the application and has succeeded. He is therefore entitled to the costs of the application. The 2nd Respondent neither filed a response to the application nor participated in its determination. There is therefore no basis for making an order of costs in its favour or against it. 66.In the result, the Appellant’s notice of motion dated 17th December, 2024 is hereby dismissed with costs to the 1st Respondent. There shall be no order as to costs in favour of or against the 2nd Respondent. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 16TH DAY OF JULY, 2026.JOE M. OMIDOJUDGEFor Appellant: No appearance.For Respondent: Mr. Saro.Court Assistants: Mr. Ngoge & Mr. Juma.Court: Mention on 21st October, 2026 for directions on the appeal.JOE M. OMIDOJUDGE