https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1543

Higher Education Loans Board v Nganga & 2 others (Civil Appeal (Application) E769 of 2021) [2026] KECA 1543 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1543 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E769 of 2021 SG Kairu, GV Odunga & HI Ong'udi, JJA July 31, 2026 Between Higher Education Loans Board Appellant and Eunice Nganga 1st Respondent Credit Reference Bureau t/a Transunion 2nd Respondent Metropol Credit Reference Bureau Limited 3rd Respondent (An appeal from the judgment and decree of the (J. Makau, J) delivered on 15th October, 2020 in Nairobi Constitutional Petition No. 91 of 2019) Ruling 1.The Notice of Motion dated 25th August 2022 is brought pursuant to Articles 159 and 164 of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act, and Rules 31, 44, 45, 96, and 97 of the Court of Appeal Rules, 2022. It was filed by the applicant seeking leave to adduce additional evidence and costs of the application to abide the outcome of the Appeal. 2.The application is premised on the grounds set out on its face and the affidavit of the applicant sworn on even date. She deponed that as evidenced by the record, she had operated a travel agency for over fifteen years prior to the judgment of the superior court delivered on 15th October 2020. She further deponed that during that period, she was unable to access credit facilities from any bank or financial institution owing to her unlawful listing as a defaulter with the Credit Reference Bureaux. She added that upon presenting the judgment and decree of the superior court to banks and other financial institutions, she was subsequently able to obtain financial facilities. 3.She further deponed that after her name was removed by the 2nd and 3rd respondents from the list of defaulters, she secured contracts for inbound group travel and sub- agencies, which she had previously been unable to secure due to the unlawful listing. She averred that the new evidence would demonstrate that, were it not for the unlawful listing, she would not have suffered business losses and damage to her personal credibility for over fifteen years. Additionally, she averred that the said evidence would assist the Court in determining whether to affirm the judgment of the superior court. 4.The appellant opposed the application through its replying affidavit sworn by the Head of Legal and Corporation Secretary, Bernadette Masinde, on 16th August 2023. She averred that the principles laid down by the Supreme Court and this Court require that additional evidence be directly relevant, in the interest of justice, unavailable during the trial despite reasonable diligence and likely to have affected the suit's outcome. She further averred that the documents sought to be introduced by the applicant are a consequence of the superior court’s judgment and were previously unavailable. Therefore, she intends to use the said documents to argue that the adverse Credit Reference Bureau (CRB) listing caused her to lose financial accommodation and business opportunities. 5.Ms. Masinde deponed that the proposed new evidence was neither directly relevant nor would it have altered the outcome of the suit. That the learned trial judge already accepted the applicant’s assertion that she missed out on financial and business opportunities even without the additional evidence. Further, that the said evidence showed the adverse listing had been expunged as early as 3rd January 2019, which was well before the judgment was delivered. 6.She deponed that the applicant’s treatment by financial institutions after the judgment was irrelevant to the award of compensation for the prior listing. She added that the applicant could have obtained similar evidence during the trial. Therefore, the proposed new evidence is merely an attempt to fill omissions or patch weak points in her case. She urged the court to deny the reliefs sought in the application. 7.The 2nd respondent opposed the application through its replying affidavit sworn by its associate counsel, Esther Wanja Mungai, on 4th March 2024. She averred that the present application was an unlawful attempt to patch up evidence adduced in the superior Court and to fill gaps in the applicant’s case contrary to the Law. She further averred that the proposed additional evidence was voluminous and would fundamentally change the nature of the litigation and the issues originally raised in the superior court. Furthermore, that the said evidence was not credible since it raises issues that were never canvassed in the trial court and was irrelevant to the issues already under appeal. 8.Ms. Mungai averred that allowing the introduction of new evidence would severely prejudice the parties and occasion unnecessary delay in the expeditious hearing and final determination of the appeal. She further averred that the proposed evidence would introduce a new and distinct cause of action on appeal, rather than address issues arising from the existing record. Furthermore, that the superior court had already awarded a global sum of Kshs. 10,000,000/= as general damages for the violation of the applicant ‘s constitutional rights. 9.In conclusion, she averred that the applicant failed to adduce any cogent evidence during trial in support of the alleged loss of income and had not provided any plausible explanation for that omission. She added that it would be unjust to grant the orders sought in the application and urged this Court to dismiss the application with costs. 10.The 3rd respondent opposed the application through the replying affidavit sworn by its manager, Pharis Kiama, on 17th November 2022. He averred that the applicant had failed to demonstrate any connection between the delivery of the judgment and any alleged upturn in her business operations or her ability to access credit. That the applicant had provided no documentary evidence to prove that her previous inability to access credit was specifically due to her being listed with credit reference bureaus (CRB). He added that the applicant had not demonstrated that any creditor had agreed to grant her credit following the delivery of the judgment. 11.He further averred that the applicant ’s application and the documentary evidence seek to introduce a strategic scheme intended to remove lacuna, fill evidentiary gaps and patch up the existing weak points in her case. 12.When the application came up for hearing on 24th March 2026, learned counsel Mr. Oduor appeared for the appellant, the applicant appeared in person, learned counsel Mr. Kisinga appeared for the 2nd respondent while learned counsel Mr. Alela holding brief for Mr. Momanyi appeared for the 3rd respondent. Counsel agreed to rely on their respective written submissions save for the appellant’s counsel who opted to rely on their replying affidavit. In addition, the applicant and counsel for the 2nd and 3rd respondents made brief oral highlights at the plenary. 13.The applicant ’s submissions are dated 19th August 2023 and she identified four issues for determination. She asserted that her application for additional evidence is brought pursuant to Rules 31(1) (b) and 96 of the Court of Appeal Rules, 2022, which empowers the court to receive further evidence and allow for additional grounds to affirm a judgment. The first issue is whether the evidence is new, relevant and credible. The applicant submitted that the evidence is inherently new because it involved bank approvals and trade contracts that only came into existence after the delivery of the judgment. She placed reliance on the decision in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others [2018] eKLR and submitted that the said evidence meets the threshold of credibility as it originates from major financial institutions and Safaricom. Further, that the same demonstrates her restored financial standing following the trial court’s judgment. 14.The second issue is whether the new evidence could have been obtained with reasonable diligence before and during trial. She submitted that there was no way the evidence sought to be adduced could have been discovered and adduced during trial even with due diligence as it did not exist prior to the judgment. She cited the decision in The Administrator, HH The Aga Khan Platinum Jubilee Hospital v. Busan Munyambu [1985] eKLR, where the court held that additional evidence would be admitted on appeal if some assumption basic to both sides had been clearly falsified by subsequent events after judgment. Further, that in Archer & another v Archer & 2 others (Civil Application E058 of 2021) [2022] KECA 9 (KLR) (21 January 2022), this Court admitted new evidence to the extent that the evidence related to events that transpired after delivery of judgment in the trial Court. 15.The applicant further submitted that the appellant’s replying affidavit raised fresh issues seeking to share liability with banks and financial institutions which were not parties in the petition as well as in the Appeal. She added that the trial court rightly held, that the appellant was wholly liable for the effects of the adverse listing and cannot shift or share that liability with any other party. 16.The third issue is whether the new evidence is capable of substantially influencing the outcome of the appeal. The applicant submitted that the new evidence would enable this Court to understand the practical impact of the superior court’s decision on her professional and financial life. She cited the decision in Attorney General v. Torino Enterprises Limited [2019] eKLR and asserted that such evidence was helpful to the court and capable of influencing its mind when deciding whether to affirm the trial court’s judgment. She emphasized that the trial court correctly found the appellant wholly liable for the adverse CRB listing and the new evidence reinforces the necessity of that finding. 17.The last issue is whether admitting this evidence will prejudice the appellant. The applicant asserted that no such prejudice existed because the evidence was brief and straightforward. She placed reliance on the case of Raila Odinga and 5 Others v. I.E.B.C. and 3 Others [ 2013] eKLR, where the court held that for additional evidence to be admissible it should not be difficult or impossible for the other party to respond to it effectively. She further asserted that she would suffer significant prejudice if the court is denied the opportunity to see how the judgment successfully restored her credibility with trade partners and banks. She urged the Court to exercise its discretion and allow the new evidence to ensure the interests of justice are served. 18.The 2nd respondent’s submissions are dated 28th July 2023.Learned counsel submitted that it was clear that the additional evidence did not directly relate to the matter before the High Court but was merely generated as a consequence of the judgment in favour of the applicant . He submitted that the Mpesa and bank statements from National Bank of Kenya (NBK) and Kenya Commercial Bank (KCB) cover the period between 2021 and 2022, which was after the High Court judgment was delivered. He made reference to the letter of offer from Diamond Trust Bank (DTB) and submitted that under Regulation 33 of the Credit Reference Bureau Regulations 2020, lending institutions are prohibited from relying solely on credit reports for lending decisions, thereby rendering such evidence irrelevant to the case at hand. 19.Learned counsel further submitted that the applicant could have obtained the new evidence with reasonable diligence and produced the same in the superior court case. He placed reliance on case of Kenya Forest Research Institute; Nairobi Court of Appeal Civil Appeal (Application) No. 2 of 2019 cited with approval in the case of Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others (supra) where the court gave guidelines on admission of new evidence in appellate courts. That the said principles dictate that additional evidence must be directly relevant to the matter and serve the interest of justice. Further, that it must be demonstrated that the evidence could not have been obtained with reasonable diligence during the original trial and would have likely affected the suit's outcome. 20.Counsel submitted that the bank and Mpesa statements were documents within the applicant ’s reach and could have been produced before the trial court with minimal effort. He placed reliance on the case of Kenya Forest Research Institute (supra) and argued that the Rules of this Court are not designed to aid an indolent litigant seeking to patch up their case or remove lacuna through a belated attempt to fill evidentiary gaps. He urged the court to dismiss the application with costs. 21.Learned counsel for the 3rd respondent during the hearing of the application, informed the court that he had filed their written submissions early that morning. However, the same are not in the court records. In highlighting the said submissions, he submitted that the deadline for producing additional evidence in the appellate court was laid by the Supreme Court in the case of Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others (supra), where the said Court listed guidelines that this Court should follow when admitting additional evidence. 22.He further submitted that the first principle states that the evidence must be directly relevant to the matter. Secondly, that the person seeking to introduce the evidence must show that they could not obtain that evidence with reasonable diligence during trial. Lastly, that the court should consider whether the evidence removes any vagueness, is credible and does not cover lacuna or gaps in the party’s case. He added that the additional evidence by the applicant was irrelevant. He referred the court to Regulation 40 of the Credit Reference Bureau Regulations, 2013 which provides that a credit score alone cannot be used to deny anyone a credit facility. 23.Mr. Alela asserted that the applicant had not demonstrated she was denied loans solely on the basis of her credit score. He argued that the evidence the applicant seeks to introduce is geared towards curing weak points and filling gaps in her case. He made reference to paragraph 138 of the superior court’s judgment where the said court specifically stated that the applicant did not produce the evidence from the banks showing that she had applied for loans and was denied the said loans because of her credit score. 24.He further asserted that under paragraph 5 of the supporting affidavit dated 25th August 2022, the applicant alleged that she was advanced credit facilities after presenting the judgment and decree to financial institutions. He added that the documents annexed therein do not expressly state that the said institutions considered the judgment and decree in advancing the loans. He cited Rule 31 of this court’s Rules and submitted that the court should exercise its discretion in allowing additional evidence. He urged the court to exercise its jurisdiction judiciously. 25.In rejoinder, the applicant submitted that the additional evidence could not have been obtained prior to the superior court’s judgment because it arose as a consequence of that judgment. She further submitted that before the superior court, she had produced evidence of unsuccessful attempts to obtain M-Pesa and KCB M-Pesa loans. She conceded that she did not present any written confirmations from the banks regarding the rejection of her loan applications, explaining that the banks did not communicate the rejections in writing. Rather, she was verbally informed that her loan applications had been declined. She further stated that, at the time, she was unaware that she had been listed as a defaulter by the Credit Reference Bureaux. 26.The applicant asserted that upon presenting the judgment to financial institutions, including Diamond Trust Bank (DTB), she was provided with loan application forms and informed that she was eligible for the requested facilities. She contended that the judgment had effectively altered her status in the eyes of banks and other financial institutions. She further asserted that the proposed additional evidence was not intended to fill gaps in her case, and if its admission was denied this court would proceed on the erroneous assumption that she was a defaulter. She added that the superior court’s judgment vindicated her position and enabled her to access credit facilities notwithstanding that she remained listed with the CRBs until her eventual delisting in 2025. 27.We have considered the application, the affidavits, both the oral and written submissions made on behalf of the parties, the authorities cited and the law. The applicant seeks leave to adduce additional evidence and that costs of the application to abide the outcome of the Appeal. In our view, the issue for determination is whether the applicant has satisfied the threshold for admission of additional evidence on appeal. 28.Rule 31 (1) of the Court of Appeal Rules, 2022 provides as follows: -“On appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have powers:a.;b.in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court;c.When additional evidence is taken by the trial court, it shall certify such evidence to the Court, with a statement of its opinion on the credibility of the witness or witnesses giving the additional evidence.” 29.It is trite law that leave to adduce additional evidence is a discretionary relief which this court grants on the basis of sufficient reason. In the case of Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) this court held that additional evidence will be introduced on appeal at the discretion of the court, for sufficient reason. In the same decision, it was further held as follows: -“…before the Court can permit additional evidence to be adduced under Rule 29 (now Rule 31), it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.” 30.The Supreme Court of Kenya in Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohammad & 3 Others (supra) set out the relevant guidelines an appellate court should consider before granting orders for admission of new evidence in the following terms:a.the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;b.it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;c.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;d.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;e.the evidence must be credible in the sense that it is capable of belief;f.the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;g.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;h.where the additional evidence discloses a strong prima facie case of willful deception of the Court;i.the Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacuna and filling gaps in evidence. The Court must find the further evidence needful;j.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;k.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.” 31.In the instant application, it is the applicant’s case that the proposed additional evidence is relevant because the same demonstrates her restored financial standing following the trial court’s judgment. She argued that there was no way the evidence sought to be adduced could have been discovered and adduced during trial with due diligence as it did not exist prior to the judgment. She further argued, that the new evidence would enable this court to understand the practical impact of the superior court’s decision on her professional and financial life. Additionally, that no, prejudice existed because the evidence was brief and straightforward. 32.On the other hand, learned counsel for the 2nd respondent argued that the proposed additional evidence did not directly relate to the issues that were before the superior court, but was merely evidence generated as a consequence of the judgment rendered in favour of the applicant. Counsel further submitted that the applicable principles governing the admission of additional evidence require such evidence to be directly relevant to the matters in issue and necessary for the attainment of justice. Learned counsel for the 3rd respondent and the appellant likewise opposed the application and advanced substantially similar arguments in support of that position. 33.The applicant wishes to adduce additional evidence namely; a credit facility letter dated 29th December 2020(DTB), KCB Mpesa messages, Safaricom Mpesa statements, an Agreement for Inbound Group Travel Management dated 5th February 2021, Agreement for Ticket Issuance dated 11th January 2021, National Bank statements and KCB statements. 34.We have considered the said documents and evaluated each of them against the guidelines and criteria laid down by the Supreme Court in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others (supra). Specifically;i.whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before us, and if allowed, whether it would influence or impact the result of the verdict.ii.whether the said evidence could not have been obtained with reasonable diligence for use at the trial and was not within the knowledge of, or could not have been produced by the applicant at the time of trial. 35.In Criticos v Attorney General & 7 others (Civil Application 276 of 2020) [2026] KECA 249 (KLR) this Court while dealing with a similar application held as follows;“17.We have grappled with the question as to whether Rule 31(1)(b) of the Rules of this Court anticipated a situation where the evidence sought to be introduced was made, or came into existence post judgment. We have not come across any decided cases where the evidence sought to be introduced was made after the judgment appealed against had been made. One may argue that such evidence can fall within the description of “evidence that could not be obtained with exercise of due diligence”, but on the other hand, it would also be argued that such evidence would have been made and tailored to specifically fill in gaps or lacuna in the case which the appellant discovered after judgment. Does the evidence before us fall in this category? In answering these questions, we shall consider the specific circumstances pertaining to this case and refrain from delving into the discourse on whether as a general rule, evidence created post judgment can be admissible.” 36.It is common ground that the aforementioned documents were obtained after the superior court rendered the judgment now under challenge. Indeed, the applicant ’s own deposition is that the evidence was procured as a consequence of findings and directions contained in the impugned judgment. In our view, the appellate process is concerned with reviewing the correctness of the decision of the trial court on the basis of the material that was available, or ought reasonably to have been available, at the time that the decision was made. Further, the purpose of Rule 31 is not to enable parties to build a new evidentiary record after judgment and thereafter invite the appellate court to determine issues on the basis of post-judgment developments. 37.It is evident that the evidence sought to be introduced was neither before the superior court nor in existence. Thus, to admit it would shift the focus of this appeal from the propriety of the judgment appealed from to matters arising subsequent to that judgment. Such an approach would be inconsistent with the appellate function of this Court. Moreover, it is our considered view that the proposed evidence intends to reinforce the findings made by the superior Court. In addition, the applicant seeks to supplement the record in light of the judgment and to improve the evidentiary foundation of the case on appeal. 38.Consequently, we are not convinced that the applicant has satisfied the threshold for admission of additional evidenceon appeal. For these reasons, we decline to allow her to adduce the proposed additional evidence. 39.In the circumstances, the Notice of Motion dated 25th August 2022 is found to be devoid of merit and is dismissed. 40.Costs shall abide the outcome of the appeal. 41.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY,2026S. GATEMBU. KAIRU, FCIArb, C.Arb (PRESIDENT)….………………..………….JUDGE OF APPEALG.V. ODUNGA….………………..………….JUDGE OF APPEALH.I. ONG’UDI….………………..………….JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR