https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12953

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E907 OF 2024** **JAMAA HOME AND MISSION HOSPITAL.....................APPELLANT** **-VERSUS-** **RUTH WAIRIMU MWENJA (Suing on behalf of the Estate of Neville Ndungu Nganga -Deceased)...............................1ST RESPONDENT** **DR. JOSEPHAT WANGWE.................................2ND RESPONDENT** **DR. EUSTACE KARA.........................................3RD RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Notice of Motion dated 8th November, 2024 brought by the Appellant pursuant to **Section 78(1)(d) of the Civil Procedure Act, Order 42 Rules 27 and 29, and Order 30 Rule 9 of the Civil Procedure Rules, 2010**, seeking principally leave to adduce additional evidence during the pendency of this appeal. 2. The Court has carefully considered the Notice of Motion, the affidavits filed in support thereof and in opposition thereto, the supplementary affidavit, together with the comprehensive written submissions filed by learned counsel for the parties. 3. Although both parties devoted considerable attention to the issue whether the Appellant is a legal entity capable of being sued, this Court must bear in mind that the substantive appeal is yet to be heard. At this interlocutory stage, the Court is not called upon to determine whether the Appellant possesses legal personality, nor whether the judgment of the trial court was correct on the merits. The sole question presently before the Court is whether the Appellant has met the legal threshold for admission of additional evidence at the appellate stage. 4. The jurisdiction of an appellate court to receive additional evidence is exceptional. It constitutes a departure from the general principle that an appeal is determined on the basis of the record that was before the trial court. Consequently, the discretion to admit fresh evidence must be exercised sparingly, cautiously, and only where the interests of justice plainly demand. 5. The Supreme Court has repeatedly underscored that litigation must attain finality and that parties are expected to place before the trial court the entirety of the evidence upon which they intend to rely. Equally, appellate courts must guard against permitting parties to reconstruct or improve their cases after judgment merely because the outcome proved unfavourable. 6. It is against these settled principles that the present application falls for determination. 7. In my view, the application gives rise to the following issues for determination: 8. ***Whether this Court has jurisdiction to admit additional evidence on appeal.*** 9. ***What principles govern the exercise of that jurisdiction.*** 10. ***Whether the Appellant has satisfied those principles so as to warrant the admission of the proposed additional evidence***. **Background** 1. Specifically, the Appellant prays for leave to place before this Court evidence intended to demonstrate that Jamaa Home and Mission Hospital is merely a trading name and not a registered company or juristic entity capable of suing or being sued in its own name. The Appellant further seeks that the costs of the application abide the outcome of the appeal. 2. The application is supported by the affidavit of **James Ndwigah Muchungu**, who deposes that although the Appellant participated in the proceedings before the trial court, its previous advocates inadvertently failed to place before the court evidence demonstrating that the Appellant was merely a trading name under Edelvale Trust. According to the Appellant, the omission only came to light after judgment had been delivered, following official searches allegedly revealing that there exist two similarly registered business names owned by a third party unrelated to the Appellant. 3. The Appellant therefore contends that the intended additional evidence goes to the very root of the proceedings since it raises the fundamental question whether the entity sued before the subordinate court possessed legal capacity to be sued. It is argued that had the evidence been presented before the trial court, the outcome of the suit would probably have been different. 4. The application is vigorously opposed by the 1st Respondent through the Replying Affidavit sworn by Ruth Wairimu Mwenja. 5. The 1st Respondent's position is that throughout the proceedings before the subordinate court the Appellant consistently admitted its description as contained in the Plaint. It is pointed out that successive firms of advocates represented the Appellant from the inception of the suit in 2017, filed a Defence and later an Amended Defence, and in each pleading expressly admitted the descriptive averments contained in paragraphs 1 to 4 of the Plaint, including its description as the 3rd Defendant. 6. The 1st Respondent further deposes that at no point during the hearing, during the filing of witness statements, documentary evidence or written submissions before the trial court did the Appellant raise the issue that it lacked legal personality or capacity to be sued. Indeed, even after judgment was delivered and an appeal lodged, the issue was not immediately raised until the present application was filed. 7. According to the Respondent, the evidence now sought to be introduced was always within the knowledge and possession of the Appellant and could, with reasonable diligence, have been produced before the trial court. The application is therefore said to amount to an attempt to fill gaps in the Appellant's case after an adverse judgment had been rendered. 8. The Respondent further points to proceedings before the Kenya Medical Practitioners and Dentists Council, where directives were issued specifically against Jamaa Home and Mission Hospital, contending that the hospital has consistently held itself out to members of the public, regulators and patients under that name. It is therefore argued that the Appellant cannot, after fully participating in the proceedings and after judgment has been entered against it, seek to avoid the consequences of that judgment by introducing evidence that was always available to it. 9. The Respondent also contends that the Appellant has not exhibited any certificate of registration or other conclusive documentation demonstrating the legal structure it now asserts. Equally, no evidence has been produced identifying the alleged proprietors whom the Respondent ought to have sued in place of the Appellant. **The Applicable Legal Principles and Analysis** 1. The Appellant's application is expressed to be brought under **Section 78(1)(d) of the Civil Procedure Act**, **Order 42 Rules 27 and 29**, and **Order 30 Rule 9 of the Civil Procedure Rules**. The Court must therefore first determine the extent of its jurisdiction before considering whether the discretion sought should be exercised in favour of the Appellant. 2. **Section 78(1)(d) of the Civil Procedure Act** grants an appellate court power, subject to prescribed conditions and limitations, to "take additional evidence or to require the evidence to be taken." That statutory jurisdiction is complemented by **Order 42 Rule 27** of the Civil Procedure Rules, which circumscribes the circumstances under which additional evidence may be admitted on appeal. 3. **Order 42 Rule 27** embodies the long-standing principle that an appeal is ordinarily determined on the record that was before the trial court. Consequently, parties are generally precluded from producing fresh evidence at the appellate stage unless exceptional circumstances are demonstrated. The rationale is obvious. Litigation must have an end, and parties are expected to present their whole case before the court of first instance. An appeal is not intended to afford a dissatisfied litigant an opportunity to rebuild, improve or reconstruct a case after judgment. 4. The law governing admission of additional evidence on appeal is now well settled. In ***Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR***, the Supreme Court undertook an extensive review of comparative jurisprudence and authoritatively laid down the principles that should guide courts in exercising that jurisdiction. The Court emphasized that admission of additional evidence is an exceptional remedy to be invoked sparingly and only where the interests of justice demand. 5. Among the principles distilled by the Supreme Court were that:- 1. ***The evidence must be such that it could not, with reasonable diligence, have been obtained for use during the trial;*** 2. ***It should directly bear upon the main issue in controversy;*** 3. ***It must be credible;*** 4. ***It should not be intended merely to fill gaps or patch up weaknesses in the applicant's case;*** 5. ***It should not unfairly prejudice the opposite party; and*** 6. ***The court must balance the need to achieve substantive justice against the equally important principle of finality in litigation.*** 6. The Supreme Court further cautioned that appellate courts must remain vigilant against attempts by unsuccessful litigants to make a fresh case on appeal through the introduction of evidence that ought to have been presented before the trial court. Such an approach would undermine orderly litigation and compromise the appellate process. 7. These principles mirror the long-established common law test in ***Ladd v Marshall [1954] 1 WLR 1489***, whose three-fold criteria have consistently been applied by Kenyan courts. Although not binding in the face of the Supreme Court's elaborate exposition in ***Mohamed Abdi Mahamud***, the decision remains persuasive and continues to inform the exercise of judicial discretion under **Section 78 of the Civil Procedure Act**. 8. Similarly, the Court of Appeal has consistently reiterated that additional evidence should only be admitted in exceptional circumstances. In [***Attorney General v. Torino Enterprises Limited***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/654)***[2019] eKLR***the court spoke to the principles underpinning production of additional evidence as follows: “Before this Court can permit additional evidence, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing; two, 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.” 1. More recently, the Court of Appeal reaffirmed these principles in [***Attorney General & 3 others v Tott & 8 others [2024] KECA 1275 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1275/eng%402024-09-20)where it emphasized that courts must exercise abundant caution and admit additional evidence only where it was genuinely unavailable despite reasonable diligence and where its admission is necessary for the just determination of the dispute. 2. Likewise, in [***Kibos Sugar & Allied Industries Limited & another v Benson Ambuti Adega & 5 others [2019] KECA 332 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/332/eng%402019-10-09)the Court of Appeal underscored that the overriding objective of civil litigation requires courts to strike an appropriate balance between achieving the correct result and preserving the finality of litigation. Justice is not served by allowing parties endless opportunities to improve their cases after trial. **Application of the Law to the Present Case** 1. Applying the foregoing principles to the present application, the first question is whether the evidence sought to be introduced could, with reasonable diligence, have been produced before the subordinate court. 2. The Appellant contends that only after delivery of judgment did it discover that it was merely a trading name under Edelvale Trust and that there existed two similarly named business entities registered under a different individual. According to the Appellant, this discovery necessitated the present application. 3. With respect, that explanation immediately encounters considerable difficulty when viewed against the record of the proceedings before the subordinate court. 4. The material placed before this Court demonstrates that the suit was instituted in **2017**. Upon being served, the Appellant instructed the firm of **Ngaywa, Ngigi & Kibet Advocates**, who entered appearance and filed a defence expressly admitting the descriptions of the parties as pleaded in the Plaint. Thereafter, the Appellant successively appointed the firms of **Kinyua Mwaniki & Wainaina Advocates** and later **Orina & Company Advocates**, all of whom continued acting throughout the proceedings. 5. Significantly, an Amended Defence was filed on **7th February 2018**, yet even then the Appellant maintained the admission regarding its description contained in the Plaint. No issue whatsoever was raised concerning its alleged lack of legal personality or incapacity to be sued. 6. Equally noteworthy, is the fact that after the close of evidence, parties filed written submissions before the trial court. The Respondent correctly points out that even in those submissions the Appellant did not challenge its legal capacity or contend that it had been sued in the wrong name. Indeed, Ground C of the Memorandum of Appeal appears to have introduced the issue for the first time after judgment had already been rendered. 7. These undisputed circumstances raise an obvious question: if, as the Appellant now asserts, it has always been merely a trading name under Edelvale Trust, who was better placed than the Appellant itself to know its own legal status from the very commencement of the proceedings? 8. Unlike evidence arising from subsequent events or newly discovered facts, the Appellant's legal structure was peculiarly within its own knowledge. Whether it operated as a trust, a company, a partnership, a business name or otherwise was information entirely within its control from the date the suit was filed. It cannot plausibly be suggested that such information only became available after the judgment of the trial court. 9. The Appellant seeks to attribute the omission to inadvertence on the part of its previous advocates, urging the Court not to visit counsel's mistake upon an innocent litigant. There can be no dispute that courts have, in appropriate cases, declined to punish litigants for genuine mistakes of counsel. Authorities such as ***Shah v Mbogo [1967] EA 116*** and subsequent decisions recognise that judicial discretion should ordinarily be exercised to avoid injustice occasioned by excusable error. 10. However, the principle that mistakes of counsel should not invariably be visited upon a litigant is not absolute. It cannot be invoked to circumvent mandatory legal requirements or to reopen litigation where the evidence in question was always within the litigant's own knowledge and could, by the exercise of reasonable diligence, have been presented before the trial court. As the Supreme Court observed in ***Mohamed Abdi Mahamud*(supra),** the appellate jurisdiction to admit additional evidence is not designed to permit parties to fill evidential gaps or to patch up weak points exposed by an unfavourable judgment. 11. In the present matter, the alleged omission did not occur at a single stage of the proceedings. Rather, the Appellant had multiple opportunities over several years, represented by different advocates, to place before the trial court the evidence it now seeks to introduce. Yet it consistently admitted its description in the pleadings, proceeded to trial on that basis, and invited the trial court to determine the dispute without raising the issue of legal capacity. 12. These circumstances considerably weaken the Appellant's assertion that the proposed evidence could not, with reasonable diligence, have been produced during the hearing before the subordinate court. **Whether the Proposed Evidence Meets the Threshold for Admission and Determination** 1. The second consideration is whether the proposed evidence is truly "additional evidence" within the meaning of **Section 78 of the Civil Procedure Act and Order 42 Rule 27**, or whether it is intended merely to repair deficiencies in the Appellant's case after an unfavourable judgment. 2. From the affidavits and submissions filed before this Court, the Appellant seeks leave to introduce official searches allegedly showing that "Jamaa Home and Mission Hospital" is merely a trading name under Edelvale Trust and that two similarly named business entities are registered under one Charles Omondi Okuro. The Appellant argues that the evidence goes to the issue of legal capacity and therefore to the jurisdiction of the court. 3. The Court readily agrees that the legal capacity of a party to sue or be sued is undoubtedly a fundamental issue. Indeed, courts have consistently held that proceedings instituted by or against a non-juristic entity may be incompetent. However, the mere importance of an issue does not, without more, entitle a party to adduce fresh evidence on appeal. The Court must still be satisfied that the stringent conditions governing admission of additional evidence have been met. 4. In ***Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR***, the Supreme Court expressly cautioned that additional evidence should not be admitted where its purpose is to remove lacunae in a party's case or enable an unsuccessful litigant to make a fresh case on appeal. The appellate process is intended to review the correctness of the decision made on the basis of the record before the trial court; it is not an opportunity to reconstruct litigation after judgment. 5. In the present matter, the evidence sought to be introduced concerns the Appellant's own legal status. That status was neither concealed nor dependent upon information obtainable only after judgment. Whether the Appellant operated as a company, a trust, a business name or an unincorporated entity was information exclusively within its own knowledge and control throughout the proceedings before the subordinate court. 6. The Court is therefore unable to accept the submission that the evidence only became available after judgment. What appears to have been discovered after judgment were the legal implications of facts that were always within the Appellant's knowledge. That distinction is important. **Section 78 of the Civil Procedure Act** contemplates newly discovered evidence not newly appreciated legal arguments founded upon facts previously known to the applicant. 7. Equally significant is the Appellant's own conduct throughout the proceedings. The record demonstrates that from the time the suit was instituted in **2017** until judgment was delivered in **June 2023,** the Appellant consistently participated in the proceedings in the very name under which it had been sued. It filed a Defence, later filed an Amended Defence, participated in pre-trial processes, called evidence, cross-examined witnesses and filed written submissions without once challenging its description or legal capacity. 8. The Respondent has correctly pointed out that even after the Appellant changed advocates on several occasions, no application was ever made to amend the pleadings or raise the question of legal capacity. The issue emerged only after judgment had been entered against the Appellant. 9. While this Court accepts that an admission in pleadings cannot confer legal personality where none exists, such admissions remain relevant in determining whether an applicant has exercised reasonable diligence. The repeated admissions made over several years, coupled with full participation in the proceedings, strongly militate against the suggestion that the present application arises from the discovery of genuinely new evidence. 10. The Appellant has relied heavily on the proposition that mistakes of counsel should not be visited upon litigants. The Court readily acknowledges that this principle is deeply embedded in our jurisprudence. Decisions such as ***Shah v Mbogo [1967] EA 116***, and more recent Court of Appeal decisions, recognise that courts should, where justice demands, avoid penalising innocent litigants for genuine procedural mistakes committed by advocates. 11. However, the Court must equally bear in mind that judicial discretion is intended to serve justice to both parties. As the Supreme Court observed in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR***, the exercise of judicial discretion is not a matter of sympathy or benevolence. It must be exercised upon settled legal principles and in a manner that safeguards the integrity of the judicial process. 12. In the present application, the omission complained of cannot fairly be attributed solely to counsel. The evidence sought to be introduced concerns facts peculiarly within the Appellant's own knowledge. Even assuming previous counsel failed to appreciate the legal significance of those facts, the material itself remained continuously available to the Appellant. Consequently, the Court is not persuaded that the present application falls within the category of excusable mistakes contemplated in the authorities cited by the Appellant. **Whether the Proposed Evidence Would Occasion Prejudice** 1. Another important consideration identified by the Supreme Court in ***Mohamed Abdi Mahamud*** is whether admission of additional evidence would occasion prejudice to the opposing party. 2. The Appellant submits that no prejudice would be suffered because the Respondent would merely pursue the correct legal entity. With respect, that submission oversimplifies the consequences that would follow if the application were allowed. 3. The Respondent instituted the suit in **2017** against the entity that rendered the medical services complained of. The suit proceeded to full hearing. Judgment was delivered after the parties had tendered evidence and fully canvassed their respective cases. Thereafter, an appeal was lodged. It is only at this appellate stage that the Appellant seeks to fundamentally alter the factual and legal framework upon which the trial proceeded by introducing evidence intended to demonstrate that the party sued lacked legal personality. 4. If such evidence were admitted, the Respondent would inevitably be confronted with an entirely new controversy requiring investigation into ownership, management, registration, operational structure and the identity of the proper legal person behind the hospital. Those are not peripheral matters. They are issues that ought properly to have been explored before the trial court through pleadings, discovery, witness testimony and cross-examination. 5. Admission of the proposed evidence would therefore substantially alter the character of the dispute on appeal. Rather than reviewing the correctness of the judgment appealed from, this Court would effectively be required to determine factual issues that were never investigated by the trial court. Such an exercise would be inconsistent with the appellate function. 6. The Court of Appeal in ***Wanje v Saikwa (No. 2) [1984] KLR 275*** warned precisely against this danger, observing that additional evidence should not be admitted where it would effectively enable a party to make a different case from that presented at trial. 7. Furthermore, permitting the Appellant to introduce evidence that was always within its possession would undermine the principle of finality in litigation. As repeatedly emphasised by both the Supreme Court and the Court of Appeal, courts must carefully balance the need to achieve substantive justice with the equally important public interest that litigation must eventually come to an end. Were parties permitted to continually improve their cases after judgment by producing evidence previously available to them, few disputes would ever attain finality. **The Court's Findings** 1. Having carefully considered the affidavits, the rival submissions, the authorities cited by counsel and the applicable law, I am not persuaded that the Appellant has satisfied the conditions prescribed under **Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules.** 2. First, the proposed evidence has not been shown to be evidence that could not, with the exercise of reasonable diligence, have been produced before the trial court. 3. Secondly, the evidence concerns matters peculiarly within the Appellant's own knowledge from the inception of the proceedings and cannot properly be characterised as newly discovered evidence. 4. Thirdly, the application appears principally intended to introduce evidence in support of a new line of argument challenging the Appellant's legal capacity after judgment had already been rendered. In substance, it seeks to remedy an evidentiary omission that became apparent only after the Appellant was unsuccessful before the trial court. 5. Fourthly, admission of the proposed evidence would occasion significant prejudice to the Respondent by substantially altering the factual matrix upon which the suit was tried and determined, while undermining the principle that litigation should attain finality. 6. In the circumstances, this Court is unable to conclude that the interests of justice favour the exercise of its exceptional discretion to admit the additional evidence sought by the Appellant. **Disposition** 1. Before concluding, I consider it necessary to reiterate that this ruling is confined solely to the Notice of Motion dated **8th November 2024**. The Court has deliberately refrained from expressing any opinion on the substantive merits of the appeal or on the ultimate question whether the Appellant possesses legal personality capable of suing or being sued. Those are matters that properly fall for determination during the hearing of the appeal on the basis of the record lawfully before the Court. 2. At this interlocutory stage, the Court's concern is whether the Appellant has laid a proper legal basis for invoking the exceptional jurisdiction of an appellate court to admit additional evidence. 3. As already observed, the jurisdiction conferred by **Section 78(1)(d) of the Civil Procedure Act** and **Order 42 Rule 27 of the Civil Procedure Rules** is discretionary and exceptional. It is not intended to afford a litigant a second opportunity to present evidence that was always available but was omitted during trial. To hold otherwise would undermine the orderly conduct of litigation and blur the distinction between the trial and appellate processes. 4. The Supreme Court in ***Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR*(supra)** emphasized that appellate courts must exercise great restraint when invited to admit additional evidence and should guard against permitting unsuccessful litigants to fill evidentiary gaps exposed by an adverse judgment. Equally, the Court of Appeal in ***Wanje v Saikwa (No. 2) [1984] KLR 275(supra)***underscored that additional evidence should not be admitted merely to enable a party to make a better case than was presented before the trial court. 5. Having considered the totality of the material placed before this Court, I am unable to find that the evidence sought to be introduced satisfies the legal threshold established by those authorities. 6. The Appellant has not demonstrated that the proposed evidence could not, with reasonable diligence, have been obtained and produced before the subordinate court. On the contrary, the evidence concerns the Appellant's own legal status, a matter that was uniquely within its knowledge from the commencement of the proceedings. 7. I further find that the application is, in substance, an attempt to introduce evidence in support of a line of defence that was neither pleaded nor pursued before the trial court, notwithstanding that the Appellant was represented throughout the proceedings by successive advocates and actively participated in the trial. The omission cannot, in the circumstances of this case, properly be characterised as the discovery of new evidence within the contemplation of **Section 78 of the Civil Procedure Act.** 8. While the Appellant has urged the Court to excuse the omission on the basis that mistakes of counsel ought not to be visited upon an innocent litigant, judicial discretion must always be exercised in accordance with established legal principles and in a manner that does justice to both parties. As the Supreme Court observed in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR(supra***), extension of judicial discretion is not a matter of sympathy but one founded upon reason, principle and the interests of justice. 9. The interests of justice in the present matter do not favour reopening the evidentiary record. To permit the Appellant to introduce evidence that was always within its possession would prejudice the Respondent, fundamentally alter the factual basis upon which the suit was tried, and undermine the principle of finality in litigation. 10. This Court is therefore not persuaded that this is one of those exceptional cases warranting the exercise of its discretion to admit additional evidence on appeal. 11. Consequently, the Notice of Motion dated **8th November, 2024** is devoid of merit and is hereby dismissed. 12. Costs ordinarily follow the event under **Section 27 of the Civil Procedure Act**, and no sufficient reason has been advanced to depart from that general rule. The 1st Respondent has successfully opposed the application and is therefore entitled to the costs thereof. **Orders** 1. Accordingly, the Court makes the following orders: 2. ***The Notice of Motion dated 8th November 2024 be and is hereby dismissed.*** 3. ***The Appellant's prayer for leave to adduce additional evidence on appeal is declined.*** 4. ***The costs of the application are awarded to the 1st Respondent.*** 5. ***The appeal shall proceed to hearing on the basis of the record of appeal as duly filed and in accordance with the directions of the Court.*** 77. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF AUGUST, 2026.** **HON. L. P. KASSAN** **JUDGE**