https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10105

Isaack’s Investment Company Ltd v Nyakundi & another (Petition E464 of 2023) [2026] KEHC 10105 (KLR) (Constitutional and Human Rights) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 10105 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E464 of 2023 RE Aburili, J July 3, 2026 Between Isaack’S Investment Company Limited Petitioner and Haron G Nyakundi 1st Respondent Archipoint Consulting Architects 2nd Respondent Ruling 1.On 21/11/2023, this Court, differently constituted, gave directions, on the hearing of the petition dated 20/11/2023 and restated on 5th November, 2025 to the effect that;1.The petition be served on all the parties.2.That the respondents do file and serve responses to the petition within 14 days after service.3.That the petitioner will thereafter have 14 days after service to file a supplementary affidavit, if need be together written submissions to the petition, not exceeding 10 pages.4.That the respondents will then have 14 days after service to file and serve written submissions not exceeding 10 pages each5.That directions on 5th March 2024. 2.On 5/3/2024, only the petitioner’s counsel appeared in court and informed the court that they had just filed an affidavit of service and sought another date. The court fixed the matter for directions on 19/6/2024. On the latter date, the respondents were represented in court and they sought for time to file responses. The court granted counsel 14 days and further directed the parties to comply with directions of 21/11/2023 and he fixed the matter for highlighting of submissions on 3/12/2024. On the latter date and subsequent dates, parties were never ready to proceed as there was no full compliance with directions issued by court on 21/11/2023. 3.On 3/12/2024, parties had not complied with directions of the court but Mr. Ooko Counsel for the petitioner stated that said that the petitioner had complied only that he had been served with a response the previous day hence he had not filed submissions and sought more time t comply. The Court granted more time of 30 days for parties to comply and set the matter for highlighting of submissions on 10/6/2025. 4.Again, on the latter date of 10/6/2025the petitioner had not filed submissions and through Mr. Anyona counsel, who was ow a different advocate, he sought more time because he had recently been instructed in the matter. the Court again gave more time for filing by 14 days for each party to comply and set the date for highlighting of submissions for 5/11/2025. 5.On the latter date of 5th November, 2025, the learned Judge E.C. Mwita J (as he then was) fixed the petition for highlighting on 21st April 2026. By the latter date, the learned Judge had been elevated to the Court of Appeal. 6.After the Judge had fixed the petition for highlighting of submissions as per the directions given on 21st November, 2023, by an application dated 13/11/2025, the petitioner, a newly appointed advocate, sought for review of the directions dated 21/11/2023 to allow it to adduce additional evidence and have the petition be heard by way of viva voce evidence as opposed to affidavit evidence as earlier directed by the court. 7.According to the petitioner, its new counsel noted that crucial documents relevant to the case, including the original agreement between the petitioner and the 2nd respondent were inadvertently omitted from documents tendered in evidence in support of the petitioner’s petition; that the petition as it is does not disclose the true nature and extent of the petitioner’s claim herein; that the additional evidence will bolt the petitioner’s petition; That the petitioner’s complaint is violation of its right to a fair hearing hence it wishes that viva voce evidence be taken for it to properly articulate its case. 8.The application was filed after change of advocates and is supported by the affidavit sworn by Ali Isaac asserting that no prejudice will be occasioned to the respondents if the orders sought are granted. 9.The respondents filed a replying affidavit sworn by Haron G. Nyakundi on 20/4/2026 opposing the application dated 13/11/2025. He deposes that on 21/11/2023 the directions reproduced above were issued by consent of and in the presence of all parties’ counsel. 10.That the 2nd respondent had filed a response and written submissions in response to the petition while the 1st respondent had filed a preliminary objection, that no new and necessary evidence had been disclosed hence the petitioner wants to keep the matter in court forever. 11.That there is no demonstration that such new evidence was not within the knowledge of the petitioner at the time of filing of the petition and could not, despite due diligence, have been produced at the time of filing the petition. That the relevance of necessity of the new evidence has not been demonstrated. Further, that the request for viva voce evidence is a third attempt to reopen the matter upon which the arbitral tribunal determined and which the court refused to set aside. 12.That there is no error apparent on the face of the record to warrant review of the court’s directions. That the assertion that the original agreement between the petitioner and the 2nd respondent was inadvertently omitted from the documents filed in incorrect and misleading since the aforesaid agreement is already annexed to the petition at pages 1 -6. 13.That the petition is disguised as an appeal, as the petitioner’s application to stay an arbitral award vide HCC Misc cause E447/2022 was dismissed on 24/8/2023 hence it is improperly attempting to reshape its petition after parties had filed responses and submissions to canvass the petition. 14.That the application is an abuse of court process and no prejudice will be suffered by the petitioner if the orders sought are declined by the court, in order for litigation to come to an end. 15.That the application does not meet the legal threshold for review or admission of additional documents hence it ought to be dismissed with costs. 16.Parties argued the application orally on 14/5/2026. The petitioner’s counsel submitted that they need to have a review of the directions of the court to allow viva voce evidence so that an original agreement dated 17/2/2022 can be produced to substitute the one earlier filed because the original agreement has been subjected to a document’s examiner and that mistake of counsel who filed the wrong agreement should not be visited on his client as was held in Philip Kiptoo Chemwolo & another Vs Augustine Kubende case. Further, that the new documents are relevant and sought to be adduced on public policy grounds. 17.According to the petitioner, viva voce evidence will allow the petitioner to properly ventilate its case. He relied on Chege & 4 others vs County Government of Uasin Gishu & 4 others and submitted that viva voce evidence was allowed even after judgment had been reserved. 18.On behalf of the 1st respondent, counsel vehemently opposed the application on both limbs. She submitted that the dispute between the parties was determined by way of an arbitration. That an application to set aside the arbitral award was dismissed is when the petitioner filed these proceedings claiming that his right to be heard was denied and violated. 19.That directions to file submissions were issued in 2023 and after parties complied, the petitioner changed advocates who should have sought to set aside those directions in 2024. Counsel submitted that the criteria for review has not been met or demonstrated. 20.Further, that the petitioner had clandestinely introduced a new further affidavit with new evidence which was never adduced before the arbitrator hence, the petitioner was seeking to set aside the arbitral award through the backdoor. 21.The 2nd respondent’s counsel submitted supporting the 1st respondents position adding that following dismissal of the application to set aside the arbitral award, the petitioner appealed to the court of appeal vide CA E7944/2024 which appeal was denied and that for 13 years, the petitioner has failed to set aside the arbitral award. That the documents sought to be introduced at this stage were never part of the arbitral proceedings. That this court therefore cannot re-litigate matters closed. 22.That section 5 of the Arbitration Act provides a remedy. That the petitioner had changed advocates 6 times. That there was no merit in the application and that the further affidavit filed without leave should be struck out. 23.In a rejoinder, the petitioner’s counsel submitted that he only came on record on 10/4/2026 and that no prejudice was demonstrated if the further affidavit was allowed. 24.On review, counsel cited Order 45 of the Civil Procedure Rules on any other sufficient cause and urged that the petitioner was not alleging discovery of new evidence or errors apparent on the face of the record but annexing of a wrong agreement. That the new report shows forgery was discovered later and that there is no constitutional bar to allowing the application to pursue justice. That this court has unlimited discretion to allow the application. Analysis And Determination 25.I have considered the application to review and setting aside the Court’s directions issued on 21st November, 2023 and seeking to introduce new evidence in the form of an agreement which the petitioner claims was not availed early and that the same shows forgery therefore the need to prosecute the petition via viva voce evidence. 26.I have also considered the responses and opposition to the application and the rival positions as submitted orally. The main issue for determination is whether the application is merited. 27.The law governing review is found under Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The said provisions stipulate as follows: -80.Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 28.The procedural part of section 80 above is Order 45 of the Civil Procedure Rules 2010 which provides:(1)Any person considering himself aggrieved-(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or(b)by a decree or order from which no appeal is hereby allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay. 29.The requirements that warrant a court to review its decision were aptly stated by the Court of Appeal Kithoi v Kioko (1982) KLR 177, page 181, thus:-“…. the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, falling which the application will not be granted.” 30.The Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 also expressed itself on the parameters of review as follows:“The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule.” 31.The above cited decisions restrict review to the following parameters:a.There must be discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.There must be some mistake or error apparent on the face of the record, orc.Any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay. 32.On the limb of adduction of new or additional evidence, the Mutunga Rules at Rule 21 provides for evaluating the petition for directions and allocating hearing dates. Under subrule (2), a party who wishes to file further information at any stage of the proceedings may do so with the leave of the Court. The procedure for applying for orders under Rule 21 is provided for under Rule 24 that such application may be made by way of notice of motion or by informal documentation. 33.The Applicant/ petitioner’s case is that there is an agreement which was not filed with the petition and that if allowed to produce it then viva voce evidence is necessary. That the petition as presently presented does not disclose the true nature and extent of the petitioner’s claim and that through viva voce evidence, it will articulate its case and that no prejudice will be occasioned to the respondents. 34.In the replying affidavit sworn by the 1st respondent, a chronology of the relationship between the parties is given, culminating in the arbitral proceedings which were concluded upon which the petitioner herein applied to set aside the arbitral award dated 26th August, 2019, lost and filed an appeal to the Court of Appeal, which appeal was equally dismissed. The petitioner then filed this petition and annexed the contract dated 12th February 2012, Between the Petitioner and Alfred O. Mango t/a ArchPoint Consulting Architects, which formed the basis of arbitration proceedings all the way to the Court of Appeal, as annexture ‘AI’. 35.It is also on record that the petitioner has changed several advocates representing him in these proceedings and as at the time of filing the application, he had just acquired a new advocate on record. 36.It is important to note that the application for review of the directions given by the court and the prayer for adduction of viva voce evidence are linked to the prayer for adduction of new evidence which is the agreement which gave rise to the arbitral proceedings which have been litigated up to the Court of Appeal, with the petitioner now claiming that he has another original agreement which shows forgery. As stated above, the petitioner already annexed to his petition and affidavit in support, a copy of the agreement/ consultancy contract which parties relied on during the arbitration proceedings and even the challenge to the award which was dismissed by a court of competent jurisdiction in the High Court and on appeal to the Court of Appeal. 37.The question is whether the application for review and the adduction of another agreement alleged to be more relevant to these proceedings is merited 38.I have considered what constitutes a new and important matter under the parameter for review. 39.The principles governing the reception of additional evidence are well settled. A party seeking leave to introduce fresh evidence must demonstrate, among other things, that the evidence could not, with reasonable diligence, have been obtained and presented during the earlier proceedings; that it is relevant and credible; and that its admission is necessary in the interests of justice. The Court’s discretion is exercised sparingly because litigation must, at some point, come to an end. 40.Has the applicant satisfied these principles? What does judicial precedents say? 41.In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) Mativo J (as he then was) held as follows:“….For material to qualify to be new and important evidence or matter, it must be of such a nature that it could not have been discovered had the applicant exercised due diligence. It must be such evidence or material that was not available to the applicant or the court. As stated above, the judgment in question was annexed to the Replying affidavit. The proceedings were part of the documents presented to the court. Differently stated, the material in question does not qualify to be new in that it was not available to the applicant or the court.” 42.In the instant case, the agreement that the petitioner now seeks to introduce is not evidence that has arisen after the conclusion of the arbitration or after the appellate process. It is a document that, by the petitioner’s own account, has always existed. No satisfactory explanation has been offered as to why it was not produced before the arbitral tribunal, or why it did not feature in the application to set aside the award, or in the proceedings before the Court of Appeal. Furthermore, the petitioner on filing of this petition annexed the same agreement which was litigated upon before the Arbitrator and the application for setting aside of the arbitral award in the High Court all the way o the Court of Appeal. 43.The omission cannot now be cured by presenting the document through a constitutional petition. 44.In Hannah Wairimu Ngethe v Francis Mungai Ng’ang’a & another [2016] eKLR, Achode LA J (as she then was), stated:“This court has not been told that the Petitioner has come upon or discovered some new and important evidence which after the exercise of due diligence was not within his knowledge. It is noted that the Petitioner has always had the advantage of counsel from the inception of this case. The court has also not been told where the Applicant has been for the last eight years since this cause was filed yet she was aware of it according to the Objector and has even had occasion to attend court in that regard. In my view this is an attempt by the Petitioner to have a second bite at the cherry. If he is allowed to re-open his case so as to prove it this would amount to allowing him to fill the gaps in his evidence after having heard the Objector’s case. That would be prejudicial to the Objector. - See Mombasa HCCC no 37 of 2007 Samuel Kiti Lewa v HFCK Ltd James M. Kagete.In the premise it is my considered view that allowing any of the two applications set out above would not only be prejudicial to the Objector but would also amount to an abuse of the court process. 45.In the case of Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR Mary Kasango J (as she then was) held“ 20.The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence. Also such prayer for re-opening of the case will be defeated by in ordinate and unexplained delay. 46.However, the learned Judge in the above matter continued as follows:“In this case Plaintiff’s counsel stated that the Plaintiff if allowed to re-testify would show that the charge document, which he did not produce in evidence, was diametrically different to the one produced by 1st Defendant’s witness, in evidence. In my view if the Plaintiff was allowed to re-open his case to so prove it would amount to allowing the Plaintiff to fill the gaps in his evidence. That would be prejudicial to the defendants. But more importantly the Plaintiff did not submit in evidence a charge instrument to be compare to the one produced by 1st Defendant.The Plaintiff also slept on his rights to apply to re-open his case. He should have made that application in August, 2010, when he obtained leave to re-amend his plaint. Having slept on his rights, the unexplained delay defeats his prayer.” 47.The Court of Appeal in Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7 March 2025) (Ruling)citing the Supreme Court decision stated as follows:“ 15.However, adducing additional evidence is not a matter of right but an exercise of the Court’s discretion. This Court in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) held that additional evidence will be introduced on appeal at the discretion of the court, “for sufficient reason.”In the same decision, this Court went on to further hold that: -…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.” 16.On the application of Rule 31 (1) (b) and (c) Chesoni, Ag. JA in Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462 held that: -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 authorize 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 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.” 48.The Court of Appeal further, in the above case, the Court of Appeal relying on the Supreme Court decision stated as follows:“ 17.On the same vein, the Supreme Court of Kenya in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 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 lacunae 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.” 49.The Court further stated:“ 18.This Court in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:“Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether 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 trial by the applicant.” 50.The principles laid down in the above decisions are applicable to the circumstances of this petition although they Gachuki case was on appeal and the application by the petitioner. More fundamentally, this application cannot be divorced from the nature of the proceedings before this Court. 51.The petition is presented as a constitutional challenge alleging violation of the applicant's right to a fair hearing. It is not an appeal against the arbitral award where a party can seek to adduce additional evidence on appeal, claiming that he was denied the opportunity to adduce that evidence or that the evidence . Neither is it a fresh trial of the commercial dispute that was referred to arbitration. 52.it is important to note that the constitutional jurisdiction of this Court is not intended to provide disappointed litigants with another forum in which to reopen factual disputes that have been conclusively determined through the arbitral process and the statutory mechanisms for challenging arbitral awards. 53.Arbitration is founded on party autonomy and the principle of finality. Courts have consistently recognised that judicial intervention in arbitral proceedings is deliberately limited. Once parties have chosen arbitration as their mode of dispute resolution, and the law has provided specific avenues for challenging an award, those procedures cannot be circumvented by recasting the same grievances as constitutional complaints. The applicant's present application demonstrates precisely the danger that the law seeks to avoid. 54.The applicant/ petitioner now invites this Court to compare two different agreements, determine which of them is genuine, investigate allegations of fraud arising therefrom and ultimately revisit the factual foundation upon which the sole Arbitrator rreached his decision. That exercise would necessarily require this Court to evaluate evidence that was never placed before the Arbitrator and to determine factual questions that fall squarely within the merits of the arbitral dispute. That is not the function of a constitutional court. 55.Additionally, a constitutional petition is not a vehicle through which parties may introduce evidence they elected not to present before the tribunal seized of the dispute, nor is it an avenue through which unsuccessful parties may reconstruct their cases after exhausting every statutory remedy available to them. 56.The Applicant's conduct further undermines the credibility of the application. Having annexed one agreement to his petition, he now seeks to disown that very document and substitute it with another, contending that the agreement that was relied on in the arbitration proceedings was a forgery. Such an approach raises serious questions regarding consistency and good faith. Litigation cannot proceed on shifting factual foundations depending on the fortunes of a litigant. Courts exist to determine genuine controversies, not to facilitate an ever-changing case crafted after successive defeats. 57.This Court is also mindful that allegations of fraud are serious allegations. They require specific pleading and cogent proof. They cannot be introduced indirectly through an application for additional evidence in constitutional proceedings, particularly where the effect would be to reopen factual questions that were, or ought to have been, canvassed before the arbitral tribunal. 58.Viewed objectively, the petitioner’s application is not directed at assisting the Court in determining the constitutional questions raised in the petition. Its real purpose is to invite the Court to revisit the merits of the arbitral dispute by introducing evidence that could and should have been presented during the arbitral proceedings. If allowed, the application would effectively convert this constitutional petition into a collateral appeal against the arbitral award, contrary to both the constitutional role of this Court and the legislative policy underpinning arbitration. This Court must decline that invitation. 59.Besides, litigation must have an end. Equally important, arbitration must retain its integrity and finality. Constitutional jurisdiction should never become an alternative forum through which unsuccessful parties seek to relitigate commercial disputes that have travelled through arbitration and the appellate process to their conclusion. 60.In Petition No. E020 Of 2023 -Between Kombe Harrison Garama -And Kenga Stanley Karisa, Independent Electoral And Boundaries Commission, Amina Abubakar Seng (Magarini Constituency Returning Officer), & Michael Thoyah Kingi, the Supreme Court, citing its own earlier decision the above quoted in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No. 7 & 9 of 2018 [2018] eKLR stated as follows, at paragraph 11 of its Ruling rendered on 16th February, 2024, after reproducing Section 20 (1) of the Supreme Court Act, 2011 which grants the Court the authority to admit further evidence in determining an appeal, where it considers necessary and appropriate:“ii.This Court set the governing principles on allowing the filing of additional or new evidence in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition No. 7 & 9 of 2018 [2018] eKLR as follows: “(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 wilful deception of the Court;(i)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.(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.”iii.Applying the above set principles, it is evidently manifest that the 2nd and 3rd respondents at all material times had knowledge of the existence of and were in actual custody of the additional or the so-called new evidence during the trial of the matter herein in the superior courts below. They admit that the additional or the so-called new evidence was in their custody and have not reasonably explained to this Court why the said evidence was not produced before the trial court or is not part of the record despite the trial court having custody of the same. In any event, if it is true that, the polling station diary for Mapimo Youth polling station was in the custody of the trial court as alleged by Chrispine Owiye in his supporting affidavit, then why seek to adduce it as new and additional evidence at this point? Furthermore, it was upon them to adduce and point out the evidence and its relevance to the trial court- whether or not it was part of the record-and not wait until this second appeal to do so.iv.Having found that the 2nd and 3rd respondents not only had prior knowledge of, but were in actual possession of the additional or the so-called new evidence, it is our considered view that their attempt to adduce additional or new evidence before this Court is intended to fill up omissions or patch up the weak points in their case which action, we refuse to countenance. Consequently, the application seeking to adduce additional evidence fails and is dismissed.” 61.Similarly in this case, the petitioner had the opportunity before the Arbitral Tribunal and even before the Court that adopted the arbitral award and even on appeal, to produce the agreement that it now wishes to produce before this Court. It did not. It is therefore my considered view thatt it’s attempt to adduce additional or new evidence before this Court is intended to fill up omissions or patch up the weak points in its case which is already determined and which action, this Court refuses to countenance. 62.Accordingly, I find and hold that the petitioner/ applicant has failed to establish any legal or constitutional basis for the admission of the proposed additional evidence which would then necessitate review of the directions given by the Court on 21st November, 2023 to allow for viva voce evidence. I further find and hold that the new evidence which is sought to be tested by way of viva voce evidence is not an essential consideration to ensure fairness and due process in this case; and that the additional evidence is intended to make this court both as a trial and an appellate Court in arbitral proceedings. Accordingly, the cited case of Chege is inapplicable to this case. Neither do I find the reference to the mistake of counsel being relevant in this matter for discussion. 63.As the basis for review and setting aside of the directions given by the Court on 21st November, 2023 and the prayer for adduction of viva voce evidence are premised on the new evidence sought to be adduced, and the court having declined the invitation to allow the production of the now new agreement for the reasons stated in this Ruling, all the prayers sought by the petitioner in the application dated 13th November, 2025 fail. The application is therefore, dismissed. 64.The costs of the application shall be borne by the Applicant/petitioner. 65.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JULY, 2026R.E. ABURILIJUDGE