https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4963

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC APPEAL NO. E041 OF 2025** COUNTY GOVERNMENT OF HOMA BAY...........................................APPELLANT/RESPONDENT **VERSUS** MAURICE OWUORA JALENY.....................RESPONDENT/APPELLANT **RULING** 1. Before this Court for determination is the Notice of Motion dated 16th December 2025 brought under Order 51 Rule 1 as read with Order 42 Rule 27(1) of the Civil Procedure Rules and all other enabling provisions of the law. The application was filed together with a Memorandum of Cross-Appeal dated 16th December 2025. 2. The Respondent/Cross-Appellant seeks the following substantive orders: That this Honourable Court be pleased to allow the Respondent/Cross-Appellant to produce additional evidence as to the value of the damaged property by calling the valuer to adduce oral evidence before this Court although the valuation report was produced as the plaintiff's exhibit during the trial. 3. That the costs of the application abide the outcome of the appeal and cross-appeal. **Applicant's Case** 1. The application is supported by the affidavit sworn on 16th December 2025. The deponent states that he is an Advocate and has had conduct of both the trial before the Chief Magistrate's Court in ELC Case No. E050 of 2023 and the subsequent appeal. 2. He depones that during the hearing before the trial court on 20th August 2025, the plaintiff produced, among other documents, a valuation report relating to Title No. Kanyada/Kalanya/4500. According to the deponent, the front page of the report bears reference number RAL/MOJ/03/23/KOO dated 20th January 2023 while the last page indicates that it was "signed and sealed this 22nd January 2022." 3. The applicant avers that the inconsistency in dates was merely a typographical error, an issue that had even been addressed in the plaintiff's written submissions before the trial court. 4. It is further deponed that in its judgment delivered on 31st October 2025, the trial court found that the appellant had indeed trespassed onto the respondent's land but declined to award special damages because the valuation report appeared to have been prepared before the occurrence of the alleged damage. The trial court observed that the valuer ought to have been called to explain the apparent discrepancy. 5. The applicant therefore urges this Court to admit additional evidence by allowing the valuer to testify and explain the typographical error so that the Court may reach a just determination of the dispute. **Response** 1. The Appellant opposed the application through Grounds of Opposition dated 23rd January 2026. 2. The appellant contends that there is no provision under the Civil Procedure Act or the Civil Procedure Rules governing cross-appeals and therefore both the cross-appeal and the present application are incompetent. 3. It is further contended that the cross-appeal was filed outside the period prescribed under Section 79G of the Civil Procedure Act and no leave was sought to file it out of time. 4. The appellant also argues that the respondent deliberately elected not to call the valuer during the trial and cannot now seek to fill evidentiary gaps through an application for additional evidence at the appellate stage. **Submissions.** 1. The application was canvassed by way of written submissions. 2. Counsel for the applicant filed submissions dated 12th March 2026. Reliance was placed on Order 42 Rule 27(1) of the Civil Procedure Rules and the decisions in *Gachuki & Another v Njenga & 2 Others* (2025) KECA 451 (KLR), *Ernest & Young LLP v Capital Markets Authority & Another* (2019) KECA 81 (KLR) and *W.E. Tiley (Muthaiga) Ltd v Devji Meghji Brothers Limited & Another* (2023) KEHC 25720 (KLR). Counsel submitted that the proposed evidence merely explains an obvious typographical error and would enable the Court to effectively determine the dispute. 3. The appellant filed submissions dated 13th March 2026 opposing the application. Counsel maintained that there is no legal framework for filing a cross-appeal under the Civil Procedure Act and relied on *Kenya Power & Lighting Co. Ltd v Peter Langi Mwasi* (2018) eKLR. 4. Counsel further submitted that the valuation report ought to have been produced through its maker and relied on *Kenneth Nyaga Mwige v Austin Kiguta & 2 Others* (2015) eKLR. It was argued that the respondent consciously chose not to call the valuer during the trial and cannot now seek a second opportunity on appeal. 5. Counsel additionally submitted that whereas an appeal ought to be filed within thirty days under Section 79G of the Civil Procedure Act, the respondent lodged the cross-appeal forty-six days after the judgment without leave of the Court. According to counsel, the cross-appeal and the present application are therefore incompetent and should be dismissed. **Issue for Determination.** 1. Having considered the application, the response and the rival submissions, the issue arising for determination is: a. Whether the Respondent/Cross-Appellant has satisfied the conditions for admission of additional evidence on appeal under Order 42 Rule 27 of the Civil Procedure Rules. **Analysis and Determination.** 1. The law governing admission of additional evidence before an appellate court is Order 42 Rule 27 of the Civil Procedure Rules which provides that parties to an appeal are generally not entitled to produce additional evidence unless the appellate court requires such evidence to enable it pronounce judgment or for any other substantial cause. 2. The principles governing the exercise of that discretion are now well settled. Admission of additional evidence on appeal is an exception rather than the rule. It is not intended to afford a litigant a second opportunity to improve a case that was inadequately presented before the trial court, nor should it be used to fill omissions or patch up weak points in a party's case. 3. The Court of Appeal in *Ernest & Young LLP v Capital Markets Authority & Another* (2019) KECA 81 (KLR) adopted the principles laid down by the Supreme Court regarding admission of additional evidence. Among the considerations are whether the evidence could have been obtained with reasonable diligence at the trial, whether it is likely to influence the outcome of the appeal, whether it removes any vagueness or uncertainty over the evidence, and whether the application is aimed at filling gaps in the evidence. 4. The record before this Court shows that the valuation report was indeed produced during the hearing before the trial court. The respondent now seeks to call the valuer to explain the inconsistency appearing on the report regarding the date when it was signed. 5. The question that immediately arises is whether the respondent has demonstrated that this evidence could not, with reasonable diligence, have been presented during the hearing before the trial court. 6. The answer is clearly in the negative. The valuation report was prepared long before the hearing. The respondent was throughout represented by counsel and had full knowledge of the contents of the report, including the apparent inconsistency in dates. Indeed, the applicant admits that the issue had already been addressed in his written submissions before the trial court. It follows that the alleged typographical error was not a matter discovered after judgment. 7. More importantly, nothing prevented the respondent from calling the valuer during the trial to clarify the discrepancy if he considered the explanation necessary. The decision whether or not to call the maker of the report was entirely within the respondent's control. Having elected to close his case without calling the valuer, the respondent cannot now seek to reopen the evidentiary process merely because the trial court found the explanation wanting. 8. Although the trial magistrate observed in the judgment that it would have been necessary to summon the valuer to explain the apparent error, that observation cannot itself constitute a basis for reopening the respondent's case on appeal. An appellate court is not intended to provide litigants with an opportunity to remedy omissions arising from their own litigation choices. 9. This Court is satisfied that the intended evidence is not newly discovered evidence. Rather, it is evidence that was always available to the respondent but which he failed to adduce at the appropriate stage. Granting the application would therefore amount to permitting the respondent to fill gaps in his case after judgment, contrary to the settled principles governing admission of additional evidence on appeal. 10. Since the Court has reached that conclusion, it is unnecessary for purposes of this application to determine the parties' arguments regarding the competency or timeliness of the cross-appeal. Those issues, if necessary, may properly fall for consideration at the hearing of the appeal and cross-appeal. 11. In the premises, the Court finds that the applicant has failed to satisfy the threshold under Order 42 Rule 27 of the Civil Procedure Rules for admission of additional evidence. **Orders** 1. Consequently, the Notice of Motion dated 16th December 2025 is hereby dismissed. 2. The costs of the application shall abide the outcome of the appeal and the cross-appeal. Ruling dated and delivered at Homa Bay via teams platform this 29th day of July 2026. **In the presence of;** 1. Oyala for G.S Okoth for the Applicant- Present. 2. Ojienda for the Respondent – Absent 3. Mercy, Court Assistant. Justice J.W Wanyonyi -Judge 29/07/2026.