Kantafu Housing Cooperative Society v Chatur t/a Chatur Radio Services (Environment and Land Appeal 99 of 2019) [2026] KEELC 3027 (KLR) (14 May 2026) (Ruling)

Kantafu Housing Cooperative Society v Chatur t/a Chatur Radio Services (Environment and Land Appeal 99 of 2019) [2026] KEELC 3027 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3027 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal 99 of 2019 MN Kullow, J May 14, 2026 Between Kantafu Housing Cooperative Society Applicant and Madatali Chatur t/a Chatur Radio Services Respondent Ruling Introduction 1.The Applicant has filed the notice of motion application dated 30th June 2023 seeking for the following ordersi.That this honourable court be pleased to grant leave to the appellant/applicant herein to produce additional evidence as captured under paragraph 24 of the supporting affidavitii.That this Honorable court be pleased to grant leave that additional evidence be produced by way of an affidavit and filed as a supplementary record of appeal.iii.That the cost of this application be in the cause 2.The application was premised on grounds that the additional evidence is directly touching on the substratum of the suit and it would be crucial to the determination of this matter and that it could not have been obtained at the time of trial hence need to have it on record. The evidence it sought to adduce is a licence agreement dated 14th August 2020 which the applicant claims would shed light on the issue of ownership of the mezzanine floor located on LR NO 209/2278 which is subject of this appeal. 3.The respondent opposed the application in a replying affidavit sworn on the 17th October 2024 where he deponed that the new evidence seeking to be introduced was not relevant nor credible to the case. That the said evidence is one which was at their disposal and could have been obtained and adduced at the Trial court with due diligence from the Applicant. Applicant’s submissions. 4.Counsel submitted whether the Appellant/Applicant herein has satisfied the grounds for grant of leave to file additional evidence on AppealHe relied on the provisions of Section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27(1) of the Civil Procedure Rules and in the case of Hon. Mohamed Abd Mahamud v Ahmed Abdullahi Mohamad & others, Supreme Court Petition no. 7 of 2018 (consolidated with Petition no. 9 of 2018.He submitted that based on the requirements on the above case, the applicant has satisfied the grounds for grant of leave to file additional evidence on Appeal being inter alia;i.The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;ii.it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;iii.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;iv.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;v.the evidence must be credible in the sense that it is capable of belief:vi.the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;vii.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;viii.where the additional evidence discloses a strong prima facie case of Willful deception of the Court:ix.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. Analysis and determination 5.Having look at the application, the replying affidavit and the submissions the issue for determination is whether the applicant has satisfied the requirements for leave to file additional evidence on appeal. 6.The applicant has indicated that the licence agreement will be crucial in the determination of the appeal as it sheds light that the mezzanine floor belongs to it. The clause 5.1 of the said licence agreement indicates that at the payment of the rent arrears by the licensee herein less the value of the mezzanine floor the said premises shall pass to the licensor being the respondents. 7.To note is that the licence agreement being relied on was entered into after a consent had been entered into by the parties which consent is dated 17th March 2020 after the applicant herein had already filed the appeal. 8.The purpose of the appeal is challenging the decision of the BRPT rendered on the 6th December 2019 set aside which decision pointed the ownership of the mezzanine floor to the respondents. Being that there was a consent agreement and through the same consent, the licence agreement came up which eventually settled the issue of the ownership as payment of the arrears would transfer it to respondent, it would not be in order for the applicant herein to use the said consent as against the respondents as the issue it seeks to litigate on appeal have already been addressed. 9.It is my view that in allowing the licence agreement the respondents will be prejudiced as per the supporting affidavit at paragraph 23, the applicant herein settled the arrears less the value of mezzanine floor giving it to the respondents. 10.In the foregoing circumstances, and in the words of the Supreme Court in Mahamud v . Mohamad & 3 Others (supra)“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.” 11.Having submitted as above allowing the license agreement will be prejudicial to the respondent and it would not be in the interest of justice to allow the same on record Final disposition 12.For the reasons as above, I make the following ordersi.That the Notice of Motion dated 30th October 2023 is without merit and is hereby dismissed.ii.Each party to bear its own costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF MAY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Karey for the Appellant/ApplicantMr. Gaita for the RespondentPhilomena W . Court Assistant