https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4883

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E028 OF 2020** **MBETHI SYONG'OMBE KIILU** **PETER KIIO KIILU** *(suing as personal representatives of the estate of GIDEON KIILU NDOLO(deceased)***::::::::::::::::::::::::::::::PLAINTIFFS/APPLICANTS** **VERSUS** **PETER KYULE::::::::::::::::::::::::::::::::::1ST DEFENDANT/RESPONDENT** **JASON MWANZIA:::::::::::::::::::::::::::::2ND DEFENDANT/RESPONDENT** **ANNA MWIKALI MWEU::::::::::::::::::::3RD DEFENDANT/RESPONDENT** **RULING** The application is dated 25th April 2025 and is brought under Order 51 Rule 1 of The Civil Procedure Rules; Sections 1A, 1B & 3A of The Civil Procedure Act; Section 4 of The Fair Administrative Action Act; Articles 47, 48 & 159 of The Constitution of Kenya, 2010 seeking the following orders; 1. That owing to the circumstances of the matter, this honorable Court be pleased to certify this application as urgent and to hear and determine it without delay. 2. That this honourable Court be pleased to grant leave to the Plaintiffs to have a document examiner/handwriting expert examine and report to the Court on the 1st Defendant’s signatures appearing on the following documents: 3. Sale agreement dated 4/11/1988, listed as no. 5 on the Plaintiffs’ Further List of Documents dated 1/3/2024. 4. Agreement dated 17/5/2011, listed as no. 7 on the Plaintiffs’ Further List of Documents dated 1/3/2024. 5. 1st Defendant’s Witness Statement dated 18/7/2022. 6. Sale Agreement dated 17/7/1997, listed under no. 1 of the Defendants/Respondents’ List of Documents dated 18/7/2022. 7. That the Honourable Court do issue such other or further Orders as it may deem fit to issue to serve the interests of justice in the circumstances of the suit. 8. That the costs hereof be in the cause. It is based on the annexed affidavit of Mbethi Syong’ombe Kiilu, the 1st Plaintiff/Applicant and grounds that there is urgency in this matter as the suit is partly heard on the Plaintiffs’ evidence and it is in the interest of justice that the report sought herein of the document examiner/handwriting expert be on the Court record before the Plaintiffs close their evidence. The said report is material to the matters herein and will assist the Court in determining the dispute between the parties. The Plaintiffs’ case is not yet closed hence the application is within time. The application is bonafide and in the interest of a fair administration of justice in the suit. That no prejudice would be occasioned to the Defendants/Respondents by a grant of the Orders sought as they are yet to give their evidence and will have the opportunity to respond to the said intended report. It is in the interest of justice that the Orders sought herein do issue. The Respondents opposed the application and stated that all the Plaintiffs’ witnesses had testified and this application is an afterthought. That the evidence ought to have been placed on record during the pretrial. The record shows that the 1st and 2nd Plaintiffs and their witness PW3 testified on 21st January 2025 before this court, Counsel for the Plaintiff applied for adjournment to call one more witness. The case was adjourned to 7th April 2025 when PW4 testified, Counsel sought an adjournment to have an expert look at the documents hence this application. I find that even if the Plaintiff’s case was closed, which it is not, the court can still open it up and have a particular witness re-called for further examination in chief or cross-examination or re-examination as provided by Section 146 of the Evidence Act. Section 146(4) of the Evidence Act states; ***“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”*** In the case of **MZEE WANJE & 93 OTHERS vs A.K. SAIKWA & OTHERS (1982-88) KAR, 462,** Chesoni Ag JA (as he then was) observed as follows; ***“The principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd vs. Marshall [1954] 1 WLR 1489 at 1491 and those principles are:*** ***(a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;*** ***(b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;*** ***(c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”*** In the case of**MOHAMED ABDI MAHAMUD vs AHEMED ABDULLAHI MOHAMED & 3 OTHERS (2018) eKLR**the Supreme Court stated as follows at paragraph 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 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.*** I have noted the documents the Plaintiffs wish to file as additional evidence a report from a document examiner and do appreciate that there may be need for the Defendants to cross examine the Plaintiffs on those documents. In my view, the court should allow a party to prosecute his/her case to the party’s satisfaction. This includes the calling of witnesses and production of documents a party deems necessary in proving or aiding their case. From the above authorities and the circumstances of this case I find that the production of the report by the Plaintiffs will not prejudice the Defendants’ case. Allowing the application will go a long way in serving substantive justice for the parties. I consequently find that the application dated 25th April 2025 is merited and the same is hereby allowed. Costs shall follow the outcome of the main suit. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**