https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1402

Mbugi v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others (Civil Appeal (Application) E020 of 2022) [2026] KECA 1402 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1402 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E020 of 2022 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Joseph Kaguura Mbugi Applicant and The Cabinet Secretary, Ministry of Lands & Physical Planning 1st Respondent The Director of Land Adjudication & Settlement 2nd Respondent The Chief Land Registrar 3rd Respondent The Attorney General of Kenya 4th Respondent John Mbiri Njagi 5th Respondent (Being an application to introduce new evidence in the pending appeal and to file a supplementary record of appeal arising from the Judgment and Decree of the Environment and Land Court at Chuka (Yano, J.) dated 7th December, 2021 in Judicial Review Application No. E004 of 2021 Judicial Review Application E004 of 2021 ) Ruling 1.The applicant’s notice of motion dated 19th May, 2023 brought under rule 29 (1)(b) of the Court of Appeal Rules, 2010, seeks leave to file additional evidence by way of a supplementary record of appeal in the main appeal (Civil Appeal No. E020 of 2022) in the form of an affidavit containing the form lodging an appeal before the Minister for Lands and Housing against the decision of the Land Adjudication Officer delivered on 13th May, 2009 and a receipt of payment. 2.In his affidavit in support of the application, the applicant deposes, inter alia, that he was an interested party in Chuka Judicial Review Application No. E004 of 2021. Upon being served with the said judicial review application, he sought legal advice from the firm of Waklaw Advocates and instructed them to defend him. He furnished the firm with all the relevant documents they requested to enable them to defend him accordingly. He deposes that among the documents submitted was the form lodging an appeal before the Minister for Lands and Housing under section 29 of the Land Adjudication Act, against the decision of the Land Adjudication Officer t delivered on 13th May, 2009, together with a receipt of payment. He deposes further that, thereafter, they agreed that the documents would be relied upon in his response to the application.The applicant deposes that it was when judgment was delivered that he realized that his advocate did not file a response to the application but only filed submissions. He therefore wrote a complaint letter to the firm dated 10th December, 2021. 3.The applicant deposes that the new and additional evidence is relevant to the issues under consideration to his appeal; that the trial court could have reached a different conclusion had the documents been presented for consideration. He notes that in the trial court’s judgment, the judge indicated that the appeal to the Minister was lodged in the year 2018 while the additional evidence that he seeks to introduce clearly shows that the appeal was lodged on 2nd July, 2009, confirming that the appeal was lodged within the stipulated timelines. For those reasons, the applicant urges this Court to allow the application. 4.In response to the Motion the 5th respondent filed a replying affidavit sworn on 1st April, 2025. He deposes that the applicant should have given his advocate all the documents he had relating to the judicial review application, which documents include, the documents that he is now seeking to introduce as new evidence. 5.He avers that the applicant should not be allowed to introduce new evidence to cover errors and omissions in his case during the trial. For that proposition he relies on the Supreme Court case of Mahamud vs. Mohamad & 3 Others [2018] KESC 62 (KLR). In addition, he avers that the said documents were readily available to the applicant had he exercised due diligence he could have availed them. He deposed that consequently, he cannot seek to adduce what he failed or omitted to produce at the appropriate time to wit, during the hearing of the judicial review application. Further, the 5th respondent contends that the applicant ought to have escalated the complaint to other authorities other than the firm of the advocate who allegedly never properly represented him. 6.The 5th respondent further states that the application does not meet the threshold for admission of additional evidence as set out in this court’s decision of Joginder Auto Service Ltd vs. Mohammed Shaffique & Mohammed Parvez Saroya (Civil Appeal (Application) 210 of 2000) (2001) KECA 296 (KLR). Contrary to the applicant’s prayer, the 5th respondent deposes that it is in the interest of justice that this application should fail and the court proceed to render its decision on appeal based on the evidence on the record of appeal. 7.The 1st to 4th respondents did not file their reply to the application neither did they file any written submissions. 8.Present at the virtual hearing before us on the 8th April, 2025 was Ms. Mbumbuya learned counsel for the applicant, the Attorney General and Mr. Mugo, learned counsel were present for the 1st to 4th and 5th respondents respectively. 9.The written submissions by the applicant dated 28th March, 2025 and the brief oral submissions by Counsel Ms. Mbumbuya were a reiteration of the applicant’s averments in his supporting affidavit. Counsel lays blame on the applicant’s previous counsel for failing to produce the documents in question, that had the documents been produced, the Judge may have arrived at a different conclusion. In addition, the said documents clearly show that the appeal was lodged within the stipulated timelines. In response to this court’s question for clarification, counsel admitted that the applicant requested time to file a response, but that his erstwhile counsel failed to file one. Lastly, the applicant prays to have the wrong citation of the applicable rule from rule 29 (1)(b) of the Court of Appeal Rules, 2010, to rule 31 of the Court of Appeal Rules, 2022 to be allowed, and submits that the error is a procedural one and the correction does not affect the substance of the application. 10.The 5th respondent filed his written submissions dated 2nd April, 2025. Both the written and the brief oral submissions by Counsel Mr. Mugo, were a reiteration of the 5th respondent’s assertions in his replying affidavit. He emphasized that their stand is that the documents intended to be introduced were readily available at the time of the hearing of the judicial review application in the superior court. Further, no reasons whatsoever were given why the advocate (deceased) did not attach or avail them and therefore the applicant was not serious. In conclusion, counsel submitted that opening that suit will be to the disadvantage and detriment of the 5th respondent and thus he urged this court to disallow the application. He relied on this court’s decision in Wanje vs A K Saikwa [1984] KLR KECA 58. 11.We have carefully considered the application in light of the arguments raised by the parties as summarized hereinabove. We note that the application is premised on rule 29 (1)(b) of the repealed Court of Appeal Rules, now rule 31 (1)(b) of the Court of Appeal Rules, 2022. Although erroneously premised on the wrong rules, we find that the procedural technicality is not fatal. The provisions of rule 31 (1)(b) of this Court’s Rules, 2022 state as follows:“31 (1)On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power-a.…b.in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court.” 12.This court has pronounced itself on the applicability of this rule in numerous of its decisions, including Wanje vs. A K Saikwa (supra), and Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR).13.The Supreme Court of Kenya in Mahamud vs. Mohamad & 3 Others (supra) laid down the guidelines for admission of additional evidence before appellate courts in Kenya, thus we are bound to consider this application in line with the guidelines. The court stated as follows:“(79)Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya 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 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 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 had 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.(80)We must stress here that this court even with the Application of the above-stated principles will only allow additional evidence on a case-by- case basis and even then sparingly with abundant caution.” 14.The applicant seeks to adduce additional evidence in the main appeal, to wit, the form used to lodge an appeal before the Minister for Lands and Housing against the decision of the Land Adjudication Officer delivered on 13th May, 2009 and a receipt of payment, as proof that the appeal was lodged on time. The applicant needed to show that the additional evidence is directly relevant to the matter before the court and that if given, it would influence or impact upon the result of the verdict; 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. 15.We have no doubt that the evidence sought to be adduced is directly relevant to the case. What is critical in this matter is whether the applicant has satisfied the prerequisite issue that he could not obtain the evidence sought to be adduced even with the exercise of reasonable diligence. What the applicant has deposed in his affidavit in support of the application, and in his submissions, is that these documents were in existence at the time of the trial of the judicial review application before the superior court. Indeed, the applicant admits that he had the documents and he presented them to his previous advocate to include them in his response to the application. He blames the advocate for failing to include them. 16.We have perused the superior court’s proceedings, and we note that the applicant requested time to file his response to the judicial review application as an interested party, and at the same time file submissions. The superior court indulged him by according him an opportunity and reasonable time to do so. That was the time the applicant should have filed his response, attaching the evidence he now seeks to adduce. The record shows that despite leave being granted, the applicant only filed his written submissions, meaning that he placed no evidence before the judicial review court and what he is seeking to do is to bring evidence in support of his case for the first time at this stage. 17.We find that the applicant had the documents all along, that he was given a chance to adduce them as his evidence, but failed to do so. He blames his advocate for failing him. This court has held time and again that litigation belongs to the party and not the advocate, and that the litigant should follow up their case with diligence. If the applicant did, he could have noted that no supporting affidavit, and therefore no evidence, was adduced in support of his case. We find that the applicant has not shown that the evidence could not have been obtained by reasonable diligence before and during the hearing. His averments filed before this court prove that the evidence was in his possession. The applicant did not show that the new evidence would probably have had an important influence on the result of the case if it had been available at the time of the trial. 18.In the case of Wanje vs A K Saikwa [1984] eKLR, this court, considering a similar application under rule 29 of this Court’s rules (now repealed and replaced by rule 31) held:“This rule is not intended to enable a party who has discovered fresh evidence to import it nor is 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 lacuna and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not he admitted to enable plaintiff 'to make out a fresh case in appeal. There would be no end to litigationIt follows that power given by the rule should be excised very sparingly and great caution should be exercised in admitting fresh evidence." (Emphasis added) 19.We find that the applicant is trying to adduce new evidence to fill in gaps and remove lacuna in his case, and that his application did not meet the required threshold. Consequently, we find as follows:i.The application dated 19th May, 2023 is without merit and is hereby dismissed.ii.The costs of this application shall be in the appeal. DATED AND DELIVERED IN NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI……………………………… JUDGE OF APPEALJ. LESIIT……………………………… JUDGE OF APPEALALI - ARONI……………………………… JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR