https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1593

Institution of Engineers of Kenya v Ntoiti & another (Civil Application E556 of 2021) [2026] KECA 1593 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1593 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E556 of 2021 K M'Inoti, EC Mwita & B Ongaya, JJA July 31, 2026 Between Institution of Engineers of Kenya Applicant and Daniel Mwenda Ntoiti 1st Respondent Engineers Board of Kenya 2nd Respondent (Application for leave to adduce further evidence in an appeal from the Judgment and Decree of the High Court of Kenya at Nairobi, (Makau, J.) dated 1st October 2020 in HC Const. Pet. No. 275 of 2019) Ruling 1.This ruling determines the motion on notice dated 21st October 2021 and taken out by the applicant, the Institute of Engineers of Kenya. In the motion, the applicant seeks leave to adduce further evidence in its appeal from the judgment of the High Court of Kenya at Nairobi (Makau, J.) dated 1st October 2020. The brief background to the application is as follows. 2.By a petition dated 12th July 2019, the 1st respondent, Daniel Mwenda Ntoiti; applied for an order of certiorari to quash the decision of the appellant dated 14th January 2019 cancelling his certificate of membership in the applicant and an order of mandamus to compel the 2nd respondent, the Engineers’ Board of Kenya to reinstate him as a professional member. 3.In response to the application, the applicant and the 2nd respondent admitted that the 1st respondent was interviewed by a three- member professional review board and was issued with a corporate membership certificate, but contended that the certificate was irregularly issued because the 1st respondent had failed his membership interview and was not among the candidates approved for corporate membership. 4.By the judgment dated 1st October 2020, the High Court found that the applicant had given inconsistent and contradictory reasons for the cancellation of the 1st respondent’s certificate; had been actuated by malice and had violated the 1st respondent’s right to natural justice in the cancelation of his certificate of membership. The Court granted the 1st respondent the remedies prayed for, general damages of Kshs. 5,000,000.00 and exemplary damages of Kshs. 1,500,000.00 and costs. 5.The applicant was aggrieved and lodged a notice of appeal on 14th October 2020 and subsequently Civil Appeal No. E556 of 2021. Pending the hearing and determination of the appeal, the applicant filed the application now before the Court for leave to adduce further evidence. The evidence that the applicant intends to adduce is listed as follows:i.Charge sheet in Kiambu Chief Magistrates’ Court Criminal Case No. 671 of 2020, Republic v. Christopher Ongonyo Munubi;ii.Prosecution witness statements in Kiambu Chief Magistrates ’Court Criminal Case No. 671 of 2020, Republic Christopher Ongonyo Munubi;iii.Applicant’s statement to its members dated 14th October 2020;iv.Applicant’s letter to the office of the County Secretary, Meru County Government dated 14th October 2020; andv.Letter by the office of the County Secretary of the Meru County Government dated 15th October 2020. 6.In addition to admission of the said evidence, the applicant also prays for leave to cross-examine the 1st respondent regarding the additional evidence. 7.In the affidavit in support of application, Eng. Nathaniel Wilson Omwolo Matalanga, the applicant’s President, deposes that the 1st respondent’s membership certificate was irregularly issued by the applicant’s former registration officer, Christopher Ongonyo Munubi, and that the said officer was, after delivery of the judgment of the High Court, charged in Kiambu Chief Magistrate’s Court Criminal Case No. 671 of 2020 with the offence of forgery relating to the 1st respondent’s certificate. 8.The applicant prays for admission of the charge sheet and witness statements in support of the charge before the Kiambu Chief Magistrate’s Court, together with its statement to its members evincing intention to appeal the decision of the High Court and correspondence exchanged with the Meru County Government, confirming the 1st respondent’s employment by the County Government as a superintendent engineer. 9.The applicant further states that the said evidence is newly discovered; was not within its knowledge; and could not be obtained with reasonable diligence for use in the High Court. 10.At the hearing, Mr. Kirima, learned counsel, appeared for the applicant and reiterated the above points in support of the application, adding that the application was not opposed. There was no appearance for the respondents, though they were duly served with the hearing notice. 11.We have carefully considered this application. The fact that the respondents have not responded to the application, of and by itself, does not mean that we must grant the application as a matter of course. There are very clear factors that an application for leave to adduce further evidence in this Court must satisfy before the Court can issue such an order. We are duty bound to satisfy ourselves that the application before us satisfies the relevant parameters. 12.Rule 31(1)(b) of the Court of Appeal Rules, 2022 vests in the Court power to admit additional evidence when hearing an appeal from a decision of a superior court acting in the exercise of its original jurisdiction. In Dorothy Nelima Wafula v. Hellen Nekesa Nielsen & Another, CA (Application) No. 50 of 2016, the Court explained the rationale behind rule 31(1) (b) as follows:“Although under the provisions of Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act this Court's powers are limited to hearing of appeals, because, in the scheme of our law and procedure, parties are expected to present their evidence before the trial courts, rule 29 (1) (b) (as rule 31(1)(b) was numbered then) aforesaid, however recognises that situations may arise making it imperative for a party to introduce new evidence even at an appeal stage.” 13.This Court as well as the Supreme Court have set and delineated the parameters within which an appellate Court may grant leave to a party to adduce further evidence. In Wanje & others v. Saikwa [1984] KLR 275 Chesoni, JA. (as he then was) cautioned against misuse of rule 31(1) (b) to patch up appeals, when he held:This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The rule does not authorise the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.” 14.In Mohamed Abdi Mohamud v. Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, the Supreme Court reiterated that additional evidence is to be allowed only sparingly; in exceptional circumstances; and on a case-by-case basis. The Court laid down the following principles to guide applications for adducing further evidence:a.the additional evidence must be directly relevant to the matter before the court and be in the interests 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 must be shown that the evidence 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.it must be capable of removing any vagueness or doubt over the case and have 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.if the evidence discloses a strong prima facie case of willful deception of the Court;h.the evidence must be needful and should not be for the purposes of removing lacunae and filling gaps in evidence.i.the evidence is not intended to enable an unsuccessful party at the trial to make a fresh case on appeal, fill up omissions or patch up the weak points in his or her case.j.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. 15.And in Jirongo v. Soy Developers Ltd. & 9 Others [2021] KESC 32 (KLR) the Supreme Court emphasised that leave to adduce further evidence should not be granted whimsically or in haste, but after careful consideration of all the relevant circumstances set out in Mohamed Abdi Mohamud v. Ahmed Abdullahi Mohamad & 3 Others (supra). 16.In the present application, we note that all the evidence that the applicant wishes to adduce at the hearing of the appeal is evidence created after delivery of the judgment of the High Court on 1st October 2020. It revolves around criminal charges preferred post-High Court judgment against its former registration officer. While clearly that evidence was not available at the time of trial and could not possibly be produced at trial, we ask ourselves, what is the relevance of the evidence to the appeal, in so far as it merely indicates that the former officer was charged with an offence, rather than convicted of irregularly registering the 1st respondent? 17.More compelling regarding the value of the additional evidence is the finding by the High Court that the applicant, at every turn, gave different and inconsistent reasons for the cancellation of the 1st respondent’s certificate. This is how the learned judged expressed himself:“Right from the onset, and as per clear facts as set out in the petitioner’s affidavits, the petitioner has been taken round on a fishing expedition by the 1st respondent, not being told exactly what accusation he is facing, and what exactly he was required to respond to. The 1st respondent has been engaged in goal- changing game and has treated the petitioner to a contest he cannot fairly compete. There is no doubt that in this matter, that the initial accusation has mutated from one accusation to another, leading to the petitioner herein learning some flesh accusation brought to his attention for the very first time when the 1st respondent filed his replying affidavit dated 16th December 2019.” 18.In light of the different explanations put forth by the applicant to justify the cancellation of the 1st respondent’s certificate, the evidence of charges preferred against the 1st respondent post- judgment smacks more of a calculated effort on the part of the applicant to patch-up and fill gaps and lacunae in its case on appeal, rather than presentation of genuinely valuable evidence that would assist the Court in the appeal. 19.For the foregoing reasons, we are not persuaded that the evidence that the applicant wishes to adduce would influence or impact the outcome of the appeal or is capable of removing any vagueness or doubt in the case. Accordingly, we find no merit in the motion dated 21st October 2021 and, the same is hereby dismissed with no orders on costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.K. M’INOTI...................................JUDGE OF APPEALE. C. MWITA...................................JUDGE OF APPEALB. ONGAYA..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.