Ayaka v South Nyanza Sugar Company Ltd (Civil Appeal E077 of 2023) [2026] KEHC 8324 (KLR) (14 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E077 OF 2023** **STEPHINE OKELLO AYAKA............................................................... APPELLANT** **VERSUS** **SOUTH NYANZA SUGAR COMPANY LIMITED…………………… RESPONDENT** **RULING** The Respondent/ Applicant in the Notice of Motion application dated 14th May 2025 sought for orders that this Appeal be consolidated with Migori HCCA No. E076 of 2023 for hearing and disposal; THAT the documents (i) The Growers Cane Farming and Supply contract serial No. 36787 and (ii) The warning letter dated December, 2012 mistakenly attached as Nos. 1 and 2 to the Defendant's List of Documents dated 11th October, 2019 in Rongo CMCC NO.162 of 2017 (now HCCA No. E077 of 2023) be expunged from the said suit and be made applicable to Rongo CMCC No.161 of 2017 (now HCCA No. E076 of 2023 Migori). THAT In the alternative, the Respondent be granted leave to adduce additional evidence In Migori HCCA Nos.E077 of 2023 and Migori HCCA No. E076 OF 2023. THAT the Respondent be granted leave to file a cross appeal in HCCA NO. E077 OF 2023 Migori and Migori HCCA No. E076 OF 2023. THAT costs of this Application be provided for. The application is on the grounds that the two Appeals and indeed the respective lower court files were filed by the same Plaintiff, one Stephine Okello Ayaka, the Appellant herein; THAT the said Stephine Okello Ayaka, the Appellant herein, had entered into two separate Growers Cane Farming and Supply Contracts with South Nyanza Sugar  Company Ltd albeit with different Account numbers. THAT both the said Growers Cane farming Supply Contracts were entered into on the same date, 8th February, 2010, under serial Nos.36787 and 36788, respectively. THAT when the Defendant was drawing and filing its List of Documents, there was an inadvertent and honest mistake in attaching the respective documents to the correct lower court file. THAT having been supplied with only one farmer's file, for Account Number 483420 the Defendant's Counsel mistakenly attached the Growers Cane Farming and Supply Contract and warning letter to lower court suit CMCC NO. 162 OF 2017 (now HCCA NO. E077 OF 2023) instead of CMCC NO, 161 OF 2017 (now- HCCA NO. E076 OF 2023). THAT suit No.162 of 2017 (now-HCCA No. E077 OF 2023) was in respect to contract Account No.483421 of Serial No.36788 whereas suit No. 161 of 2017 (now- HCCA No. E076 of 2023) was in regard to contract Account No.483420 of Serial No.36787 THAT the mistake of filing documents in the wrong file arose due to confusion with the two suits being filed by the same Plaintiff and the date of agreement being the same. THAT the mistake is an honest mistake which ought to be excused in the interest of justice and fair remuneration in light of changes made in the document relied upon by the Plaintiff in CMCC NO.161 OF 2017 (Now HCCA NO. E076 OF 2023), which may lead to unjust enrichment. THAT the mistake is further excusable in light of the evidence led in the lower Court on both acreage and warnings issued in CMCC 161 OF 2017 (now HCCA NO. E076 OF 2023). THAT the said Growers Cane Farming and Supply Contract and Warning letter have been captured in the Defendant's List of Documents dated 14th November, 2018 and filed on 30th September, 2024 in CMCC NO. 162 OF 2017 (now HCCA No. E077 of 2023) but for the same to be attached to the List of Documents in CMCC No.161 of 2017 (now HCCA No. E076 of 2023).  THAT the said Growers Cane Farming and Supply Contract now Intended to be produced in HCCA No. E076 of 2023 is directly relevant to the matter before Court and could not have been produced at the time of suit as it had been erroneously been filed in another suit by the Appellant herein and therefore it would be in the Interest of justice if it is applied to the correct suit file. THAT this error has been noted upon the filing of the amended Memorandum of Appeal in HCCA No. E077 of 2023, and therefore the application has been brought timeously. THAT further, the copy of Growers Cane Farming and Supply Contract discloses a Strong prima facie case of willful deception of the Court by the Appellant in HCCA No. E076 of 2023; IS credible and capable of removing vagueness of doubt over the case and is not  voluminous as to make the Appellant to respond effectively. THAT the consolidation of the two said Appeals is therefore necessary for ease of addressing the questions raised herein and questions that may be raised during the hearing of the said Appeals. The application is also supported by the affidavit of Hillary Tom Ongori Advocate sworn on 14th May 2025 reiterating the grounds on the face of the application that the mistake of filing documents in the wrong file arose due to confusion with the two suits being filed by the same Plaintiff and the date of agreement being the same’ THAT the mistake is an honest mistake which ought to be excused in the interest of justice and fair remuneration in light of changes made in the document relied upon by the Plaintiff in CMCC NO.161 OF 2017 (Now HCCA NO. E076 OF 2023), which may lead to unjust enrichment. (Annexed and marked "I-ITO-2" is a copy of the Plaintiffs List of Documents; Cover Page and Schedule A Of the Agreement filed in Rongo CMCCNo.161 "2017). THAT the mistake is further excusable in light of the evidence led in the lower Court on both acreage and warnings issued in CMCC 161 OF 2017 (now HCCA NO. E076 OF 2023) (Annexed and marked 'PI-ITO-3 is excerpt of the testimony of DIVI- in Rongo CMCC No. 161 of 2017). THAT the said Growers Cane Farming and Supply Contract and Warning letter have been captured in the Defendant's List of Documents dated 14th November, 2018 and filed on 30th September, 2024 in CMCC NO. 162 OF 2017 (now HCCA No. E077 of 2023) but for the same to be attached to the List of Documents in CMCC No.161 of 2017 (now HCCA No. E076 of 2023) as can be seen at Annexures "HTO-I" above. THAT the said Growers Cane Farming and Supply Contract now intended to be produced in HCCA No. E076 of 2023 is directly relevant to the matter before Court and could not have been produced at the time of suit as it had been erroneously been filed in another suit by the Appellant herein and therefore it would be in the interest of justice if it is applied to the correct suit file. THAT this error has been noted upon the filing of the amended Memorandum of Appeal in HCCA No. E077 of 2023, and therefore the application has been brought simultaneously. THAT indeed, even the PW1, DWI, the Honourable Subordinate Court and both Counsels on record, were not able to detect this anomaly until the filing of the Amended Memorandum of Appeal. THAT further, the copy of Growers Cane Farming and Supply Contract discloses a strong prima facie case of willful deception of the Court by the Appellant in HCCA No. E076 of 2023 is credible and capable of removing vagueness or doubt over the case and is not voluminous as to make the Appellant to respond effectively, all as it can be seen in Annexure "HTO-2" above. THAT the consolidation of the two said Appeals is therefore necessary for ease of addressing the questions raised herein and questions that may be raised during the hearing of  the said Appeals. THAT no prejudice whatsoever or at all shall be occasioned to the Respondent upon the grant of leave and extension of time sought. THAT the instant Application has been brought without any inordinate delay and in utmost good faith. THAT the interest of justice and fair hearing militates towards the grant of the orders  sought. THAT it would be just, mete and equitable for the Applicant to be granted the leave sought. THAT I swear this affidavit in support of the instant Application and humbly beseech this Honourable Court to unconditionally grant the orders sought herein. THAT what I have deponed to herein above is true and within my knowledge, save where otherwise stated, in which event, same IS true and correct to the best of my information and belief, sources hereby being disclosed. In opposition to the application the Appellant filed a Replying Affidavit sworn on 7th October, 2025. The Appellant/Respondent averred that the two suits were based on different contracts with the Respondent with different particulars, exhibits/documents, dates, acreage and different issues. That consolidating the two appeals will convolute the record thereby leading to confusing and subsequently miscarriage of justices. THAT this court sitting as an appeal court cannot be invited to amend and or interfere with the lower court record by expunging exhibits which were already filed, identified and produced by the respondent/defendant in Rongo CMCC NO. 162 OF 2017 (now HCCA NO. E077 OF 2023) and then purport to make the said documents applicable to Rongo CMCC NO. 161 OF 2017 (now HCCA NO. E076 OF 2023) where the documents were neither filed nor identified and produced as exhibits. THAT allowing prayer number 2 of the application would mean that this court would be introducing new exhibits at appeal level and sealing loopholes in the defendant's/respondent's case at an appeal level yet the defendant/respondent has not blamed the trial court for the purported mistake. THAT this court cannot grant the Respondent leave to adduce additional evidence in Migori HCCA Nos. E077 of 2023 and Migori HCCA No. E076 of 2023 because the Defendant/Respondent has always had the said documents since 2017 when the lower court case was filed and served on them. THAT nonetheless the Appellant had no problem with the Respondent being granted leave to file cross-appeal in Migori HCCA No. E077 of 2023 and Migori HCCA Nos. E076 of 2023. THAT it is in the interest of justice that this application be dismissed with costs as it lacks merit. THAT what has been deponed to herein above is true to the best of my knowledge, information and belief. The application dated 14th May 2025 was canvassed by way of written submissions. The Applicant/ Respondent’s submissions are dated 5th September 2025 and are to the effect that on 19th May, 2025, by consent of the parties an oral consent was adopted granting prayer 4 of the said Notice of Motion and pursuant thereof, the Respondent/Applicant filed Notices of Cross-Appeal in both Migori HCCA Nos.E077 of 2023 and E076 of 2023 on 22nd May, 2025. The Applicant submitted that consolidation of Migori HCCA No. E077 of 2023 and E076 of 2023 will help this Court to address all the issues in the two Appeals effectively and in a just manner since the parties in both suits are the same and the nature of the claims are similar. Further, the consolidation sought will help in efficient administration of the common questions of Law and Fact arising in the two appeals and this Court has discretionary powers to order such consolidation as no prejudice will be suffered by the Appellant/Respondent if the consolidation sought is granted. Indeed, the consolidation sought will assist this Court in reaching a just and fair finding in each of these two Appeals as shall be shown later here below, The Respondent/Applicant relied on the decision of the Supreme Court of Kenya:- In Omoke v. Kenyatta & 83 others (Petition N0. E0151 of 2021 [2021]1 KESC 27 KLR where the Superior Court delineated the threshold for consolidation of suits or Appeals, among others it held:- ***"Consolidation of suits or Appeals will be ordered where there are common questions of either Iaw or facts in two or more suits or Appeals and where it is desirable that all related matters be disposed at the same time " (emphasis mine).*** The related matters in these Appeals now sought to be consolidated are the two contracts entered into between the Appellant and the Respondent, the question of the plot sizes of the contracted areas, the fair and impartial remuneration of the Appellant based on proper acreage, the averting of injustice to either the parties in light of the proper plot sizes applicable in both suits. The Appeals and Cross- Appeals filed in these claims therefore raise similar issues on the plot area sought to be compensated. A failure to consolidate may lead to the Appellant being awarded for a plot size 0.8 ha pleaded instead of 0.3 ha that she actually signed up for in HCCA 076 OF 2023. The Respondent/Applicant prayed that the prayer for consolidation of the two Appeals be allowed to enable a just and true determination of facts before the Court as prayed for in prayer 2. It was submitted that Rongo CMCC NO.161 of 2017 and Rongo CMCC NO. 162 OF 2017 were filed by the same Plaintiff. The contracts relied therein were both entered into on the same date and this account numbers assigned were similar and followed each other as captured at paragraph 4 of the Supporting Affidavit of Hillary Tom Ongori. These suits were always listed the same date in the Court below and the Advocates on record in both were the same and all these factors would likely cause confusion and mistakes in terms of documentation and filing thereof. That indeed this is what happened as explained at paragraphs 4-8 of the Supporting Affidavit of Hillary Tom Ongori. This mistake and confusion affected these two files, a mistake neither the Advocates for the Plaintiff/Appellant or for the Respondent/Applicant or their respective witnesses or the Court itself all failed detect during trial. Indeed, the Appellant did not detect this anomaly either at the time of filing the Memorandum of Appeal and only came to do so at the time of filing the Amended Memorandum of Appeal in HCCA No. E077 of 2023 on 05.08.2025. In light of the Amended Memorandum of Appeal, it is only fair that such mistake of relying on the documents meant for one file in another related file be corrected and the documents aligned to allow for a fair and just determination as supported at paragraphs 9-14 of the Supporting Affidavit of Hillary Tom Ongori. If such correction, which this Court has discretion to do, is not done, there is a likelihood of the Appellant gaining have what he deserves in both sides which could be prejudicial to the Respondent. The Applicant also submitted that there is a likelihood of the Appellant falsely enriching himself by 0.5 ha worth through willful deception if the prayer for aligning the documents correctly in these respectively files is rejected, since he will have misled the Court on the true acreage of the plot the subject of HCCA NO. E076 OF 2023. The Applicant urged the court to allow prayer 3 of the Notice of Motion in the interest of justice and fair determination. In the alternative the Applicant prayed that the court allows them to adduce additional evidence in HCCA E076 OF 2023. This is premised on the ground that even though the said evidence was available, it was mistakenly filed in a related matter hence it was not available in the correct file. The evidence sought to be introduced is directly relevant to Appeal No. E076 of 2023 and is likely to influence the outcome thereof and its introduction is on the interest of justices. The Applicant cited the Supreme Court of Kenya holding in Mohammed Abdi Mohamoud v. Ahmed Abdullahi Mohamed & 3 Others [20181 eKLR, where it was held that additional evidence at the Appellate level should be allowed on a case-by-case basis. The Court further laid down governing principles on allowing additional evidence in Appellate Court in Kenya at paragraph 79 of the Judgement as follows:- "Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows: 1. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; 2. it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; 3. it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; 4. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; 5. the evidence must be credible in the sense that it is capable of belief; 6. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; 7. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; 8. where the additional evidence discloses a strong prima facie case of willful deception of the Court; 9. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. 10. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case. 11. The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. It was submitted that the Applicant herein has met the threshold enumerated at paragraph 79 of the Mohammed Abdi Mohamoud (supra). The principles need not all be present but if substantially achieved thereon, the prayer for adduction of further evidence ought to be granted as that will advance performance of substantive justice. The Respondent/Applicant submitted that the Court is clothed with discretionary powers to award the prayers 1 and 2 as sought in the Notice of Motion and/ or prayer 3 in the alternative as sought in the said Notice of Motion. The court was urged grant the orders sought in the interest of justice to remove the vagueness or doubt over the correct acreage in both plots which has a direct bearing in both these Appeals. The additional evidence does disclose a strong prima facie case of willful deception of the Court by the Appellant in HCCA No, E076 of 2023 hence the mis-filed documents ought to be admitted The Appellant/ Respondent in submissions dated 4th November 2025 said the purport of the instant application is to enable the Applicant/Respondent get another bite at the cherry at an appeal stage. It was submitted that the Appellant’s position on the issue of consolidation is stated at paragraph 3 of his replying affidavit to the effect that the appeals sought to be consolidated are based on different contracts with the Applicant which contracts were based on different particulars, exhibits/documents, dates, acreage and different issues altogether. He submitted that this Court is being invited to consolidate appeals which arise from varied factual circumstances and from different transactions. Indeed, to consolidate the appeals would in our view convolute the records and hamper the expeditious determination of this appeal. That in any event the prayer to consolidate the Appeals is solely intended to confer undue advantage to the Applicant. Further, the authority relied on by the Applicant in support of this issue is distinguishable from the prevailing circumstances for the reason that the facts in issue are quite clearly dissimilar. Additionally, the Appellant submitted that the instant application also seeks orders for addition of evidence and reorganization of the trial court records. The prayer for consolidation cannot therefore be considered in isolation. As submitted above, the move to consolidate the 2 appeals is a clandestine attempt by the Applicant to obtain the aid of this court in sanitizing its want of diligence in prosecuting its cases in the trial court, which cases were heard and determined separately without objection from any party. The Appellant further submitted that the implication of moving documents from one file in the trial court to another is to amend and or interfere with the lower court record by expunging exhibits which were already filed, identified and produced by the Applicant/Defendant in Rongo MCCC 162 of 2017 (now HCCA E077 of 2023) and Rongo MCCC 161 of 2017 (now HCCA E076 of 2023). The Appellant contended that the case from which this appeal emanates was ably prosecuted by the Applicant's advocates who guided its witnesses in preparation of documents and production of the same as exhibits. Accordingly, we submit that the Applicant's claim that "the confusion and mistakes in terms of documentation" was caused by the fact that these 2 matters proceeded alongside each other is implausible. That in the contrary, the movement of the files in the manner described was meant to offer ease and clarity, and to facilitate expeditious disposal of the matters by taking the evidence of the witnesses on the same day, albeit at different times. Further submission was that the cases were subjected to pre-trial case management conference pursuant to Order 11 of the Civil Procedure Rules. That the Applicant having failed to raise any issues on possible mix up of the matters, they are estopped from relying on mistakes to pardon its willful conduct. It had the occasion and opportunity to recall any witness and to seek leave to file supplementary documents as necessary. That additionally, the witnesses testified and were cross examined separately in two cases in Rongo MCCC 162 of 2017 (now Migori HCCA E077 of 2023) and Rongo MCCC 161 of 2017 (now HCCA E076 of 2023); resulting into different sets of proceedings and records of appeal. That in view of the foregoing, the Appellant submitted that this court sitting on appeal cannot then revise, reorganize and or regularize the proceedings and records of the trial court in the manner sought by the Applicant as to do so would be prejudicial to the Appellant as it would infringe on the Appellant's right to fair hearing; fair trail; due process of the law and the rules of natural justice. The Appellant also submitted that the Applicant made a conscious decision on how to prosecute its defence in the trial court and a judgment was made based on the evidence and testimony adduced in each file. Therefore, the Applicant having made its bed, must now move with grace and lie on it. Issuance of this order would effectively alter the issues in dispute and introduce elements that were not presented for determination in the trial court, and for which this court siting on appeal lacks jurisdiction to address. In regard to the prayer to adduce additional evidence it was submitted that courts are enjoined to proceed with caution before issuance of an order for addition of evidence and that the circumstances of this case does not lend itself to production of additional evidence at an appeal stage. That the documents sought to added are the Applicant's own documents and were in its possession at all times material to the case in the trial court. The Applicant has not established/offered any credible reason as to why the documents were not filed and/ or why the documents were filed in the wrong files. The Appellant submitted that the instant application falls short of the threshold/ principles established in the Supreme Court holding in **Mohammed Abdi Mohamoud -vs Ahmed Abdulahi Mohamed & 3 Others (2018) eKLR** on allowing additional evidence laid down by the Supreme Court in the said case. The Appellant cited and sought to rely on the **Supreme Court holding in Attorney General v Zinj Limited (Petition 1 of 2020) [2021] KESC 63 (KLR) (Civ) (5 March 2021)** where it re-visited the factors and ingredients to be taken into account by the appellate court before granting leave to adduce additional evidence where the Court observed thus: "12. The divergence of the findings by both Courts is now the subject of the appeal before us and the question that we must ask is whether the alleged additional evidence would run afoul of the principles we established in Hon. Mohamed Abdi Mohamad. Those principles, flowing from an interpretation of Rule 18 of the Supreme Court Rules 2012 (now Rule 26 of the Supreme Court Rules 2020 are as follows: * 1. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; 2. it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; 3. it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; 4. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; the evidence must be credible in the sense that it is capable of belief 5. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; 6. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; 7. where the additional evidence discloses a strong prima facie case of willful deception of the Court; 8. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. 9. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case. 10. The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence. On the other hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other. The Appellant further submitted that the trial court entered judgment against the Applicant herein and the instant application is evidently actuated with malice and bad faith and is intended to defeat the ends of justice by judicial craft. For that reason,  the Applicant seeks an order to have the proceedings of the lower court reorganized by removal and refiling of documents. In a bid to enhance its chances of success in this fishing expedition, the Applicant seeks that in the alternative it be allowed to adduce additional evidence of documents which were always in its possession. Simply, put the instant application is a brazen attempt to fill in gaps in evidence before the Appeal is heard. The court was urged to be persuaded by the holding of ***Oguttu Mboya, J in Jattani v Jattani (Environment and Land Appeal E009 of 2023) [2025] KEELC 3283 (KLR)*** where he held:- "44. Surely, no litigant, the Applicant not excepted can be allowed to use a court of law as an investigating forum to undertake further investigations and procure [sic] additional documents to defeat decisions arrived at on the basis of evidence tendered. * 1. In my humble view, the current application, if allowed, would be tantamount to granting the Applicant undue latitude to go on a fishing excursion/ expedition. Such an endeavor, has serious ramifications on the right to fair hearing; fair trail; due process of the law and the rules of natural justice. [See Article 10, 27[1] and 50 of the Constitution 2010]. 2. Other than the foregoing, it is also important to underscore that before an Applicant can partake of the leave to tender additional evidence, the Applicant must demonstrate that what is sought to be adduced as additional evidence could not have been procured/obtained with reasonable diligence for use at the trial." The Application for leave to file a cross appeal in Migori HCCA E077 OF 2023 and Migori HCCA E076 OF 2023 was allowed by consent of the parties and the same has already been complied with. **Analysis and determination** Having considered the application herein, the grounds, the supporting Affidavit, the Replying Affidavit and respective submissions by the parties the issues for determination are:- 1. Whether HCCA Nos. E076 and E077 of 2023 ought to be consolidated 2. Whether this Court can expunge documents from one lower court record and make them applicable to another suit; and 3. Whether the Applicant has met the threshold for adducing additional evidence on appeal. The Applicant contends that the Appellant had filed two separate suits in the subordinate court namely Rongo CMCC Nos. 161 and 162 of 2017 arising from two sugarcane farming contracts entered into on the same date, namely 8th February 2010. It is further contended that the contracts bore serial numbers 36787 and 36788 respectively and related to account numbers 483420 and 483421. The Applicant avers that owing to the similarity of the contracts, parties and dates, counsel inadvertently attached the Growers Cane Farming and Supply Contract Serial No. 36787 and warning letter dated December 2012 to the wrong file namely Rongo CMCC No. 162 of 2017 instead of Rongo CMCC No. 161 of 2017. The Applicant therefore urges the Court either to correct the record by expunging and reallocating the said documents or alternatively permit the adducing of additional evidence on appeal. The Appellant opposes the application on grounds that the two suits arose from separate contracts and distinct causes of action and that the Court, sitting as an appellate court, lacks jurisdiction to reorganize or reconstruct the lower court record. The Appellant further contends that the documents sought to be introduced were always within the Applicant’s possession and that the application is merely intended to fill gaps in evidence after judgment. Regarding the first issue as to whether HCCA Nos. E076 and E077 of 2023 should be consolidated the principles governing consolidation of suits and appeals are now settled. In Omoke v Kenyatta & 83 others the Supreme Court stated that consolidation is appropriate where there exist common questions of law or fact and where it is desirable that related matters be disposed off simultaneously. The Court has considered the material placed before it and there is no dispute that the parties in both appeals are the same; both matters arise from sugarcane farming contracts; the contracts were allegedly executed on the same date; the account numbers are sequential and the suits proceeded contemporaneously before the subordinate court. This court is therefore satisfied that the two appeals raise sufficiently related factual and legal issues to justify consolidation for purposes of efficient disposal and avoidance of inconsistent findings. However, the Court agrees with the Appellant that the two matters nonetheless arise from separate contracts and separate proceedings. Consolidation should therefore not obliterate the individuality of each appeal. Accordingly, the Court finds merit in the prayer for consolidation only to the extent that the appeals shall be heard together while maintaining separate records and distinct determinations where necessary. The prayer for consolidation therefore succeeds. On whether this Court can expunge documents from one lower court record and make them applicable to another suit, the Applicant seeks orders expunging documents already filed and produced in Rongo CMCC No. 162 of 2017 and having the same deemed applicable in Rongo CMCC No. 161 of 2017. This prayer presents significant jurisdictional and procedural difficulties. This Court sits as a first appellate court. Its duty is to reconsider and re-evaluate the evidence that was placed before the trial court and arrive at its own independent conclusions. An appellate court does not ordinarily reconstruct proceedings or retrospectively reorganize trial records. The documents sought to be “moved” were not merely lodged in the court file inadvertently. The material before Court shows that they were filed by counsel; identified during trial; produced as exhibits; and formed part of the evidentiary record upon which the trial court rendered judgment. To permit expunging and reallocation of exhibits at appellate stage would effectively amount to rewriting the subordinate court proceedings after conclusion of trial. The Court further notes that the Applicant does not allege that the documents were unavailable during trial. Rather, the explanation advanced is that counsel mistakenly filed them in the wrong matter. While mistakes of counsel may in appropriate circumstances be excusable, such mistakes cannot justify alteration of a concluded trial record in a manner that prejudices the opposing party and undermines the integrity of appellate proceedings. This court therefore finds that the prayer seeking expunging and reassignment of documents from one lower court record to another is untenable and incapable of being granted. That prayer is accordingly declined. The Applicant also urged the court to grant leave to adduce additional evidence. The law governing admission of additional evidence on appeal was settled by the Supreme Court in Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamed & 3 Others where principles governing admissions of additional evidence at appellate stage was laid down and it was emphasized that such jurisdiction should be exercised sparingly and only in exceptional circumstances. The Applicant argues that the proposed additional evidence is directly relevant to the dispute concerning acreage and contractual identity and that failure to admit the evidence may occasion injustice. This court agrees that the proposed contract and warning letter appear materially relevant to the dispute before court and may potentially influence the outcome of the appeal. The court further accepts that confusion may plausibly have arisen owing to the similarity of the contracts, parties, dates and account numbers. However, the Applicant faces a major obstacle regarding the requirement of due diligence. The documents sought to be introduced were at all material times within the Applicant’s possession and knowledge. Indeed, the Applicant acknowledges that the documents were filed in the alternate suit. This is therefore not a case of newly discovered evidence. The appellate jurisdiction to admit additional evidence is not intended to afford unsuccessful litigants an opportunity to patch up weak points in their cases or fill evidentiary gaps after judgment. The court is persuaded that the Applicant had sufficient opportunity during trial, including during pre-trial compliance and hearing, to identify and rectify the alleged mix-up. In the circumstances, allowing the additional evidence would occasion prejudice to the Appellant and undermine the principle of finality in litigation. This court therefore finds that the Applicant has not satisfied the threshold for admission of additional evidence on appeal and that prayer accordingly fails. In the result, the Notice of Motion dated 14th May 2025 succeeds only in part and the court makes the following orders: 1. Migori HCCA No. E076 of 2023 and Migori HCCA No. E077 of 2023 are hereby consolidated for purposes of hearing and disposal. 2. HCCA No. E076 of 2023 shall be the lead file. 3. The prayer seeking expunging and reassignment of documents from one lower court record to another is declined. 4. The alternative prayer seeking leave to adduce additional evidence on appeal is also declined. 5. The prayer for leave to file cross-appeals having been compromised by consent is marked as settled. 6. Costs of the application shall abide the outcome of the appeals. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 14TH DAY OF MAY, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE**