https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12813

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL (APPLICATION) NO. E101 OF 2023** **FELISTUS MULI KILONZI & JAMES K. MUSYOKI** ***(Suing as the personal representatives and Legal Administrator*** ***To the Estate of the late Augustine Mulela Munyilu)…..............................................*APPELLANT/ APPLICANT** **VERSUS** **ALICE WAITHAGA IRUNGU & MERCY WAKERA NGARI** ***(Suing as the personal representatives and Legal Administrator*** ***To the Estate of the late Zachary Mbogo Maina)……*......................................................1st RESPONDENT GEMINIA INSURANCE……………….……..……..….2nd RESPONDENT** ***(****Being an application for adduction of additional evidence in an appeal from the Judgment and Decree of the PMC, Kilungu Civil Case No. E292 of 2022 (F. Makoyo, ) dated 26th September,2023****)*** **RULING** **Background** 1. Felistus Muli Kilonzi and James K. Musyoki(the applicants/appellants), through a Notice of Motion dated 23rd November, 2023, seek to adduce additional evidence at the appellate stage. The documents, which they seek to adduce, are the rough sketch map plan of the accident/scene, fair sketch map of the accident/ scene, a copy of the covering report, summary findings and recommendations of police investigations, a letter dated 9/11/2022 by the Base Commander Sultan Hamud Police Station to the ODPP and a response letter dated 29/11/2022 by ODPP to the Base Commander, Sultan Hamud Police Station. 2. The motion is premised on grounds, *inter alia,* that the additional evidence sought to be admitted are needful for the interest of justice and are likely to have an impact on the outcome of the suit; that the applicants only got the documents after the judgment had been delivered and applied for a review to the trial court, an application which was disallowed; that no party will suffer any prejudice as they will have an opportunity to interrogate the documents; that the existence of the evidence was unknown to the applicants and could not be made available during the hearing, notwithstanding due diligence; that the evidence would probably have an important influence on the result of the appeal; that no prejudice would be occasioned to the respondents if adduction of the additional evidence is allowed; and that the adduction of the additional evidence would help the Court to make a just determination of the appeal and the documents have been produced in a pending case E174/2023 a matter that concerns the same accident. 3. The application is supported by the affidavit sworn on 23rd November, 2025 and supplementary affidavit of 20.02.2026 both deposed by Felistus Muli Kilonzi. She deposed that the appeal herein arose from the decision rendered by the Principal Magistrate ***(F.Makoyo)*** on 5th December, 2023 dismissing the application by the applicants seeking for a review of the court’s judgment delivered on 26th September, 2023 on the account of discovery of new documentary evidence which they now seek to admit at appellate stage. The applicant further deposed that the judgment delivered on 26/09/2023 was on the consolidated suits Nos. E 292 of 2022 and E293 of 2022 which apportioned liability to the parties at 50:50. Another suit E174 of 2023 was later filed and yet to be determined. 1. The applicant further deposed that the documents which the applicants wish to produce in court are the rough sketch map plan of the accident/scene, fair sketch map of the accident/ scene, a copy of the covering report, summary findings and recommendations of police investigations, a letter dated 9/11/2022 by the Base Commander Sultan Hamud Police Station to the ODPP and a response letter dated 29/11/2022 by ODPP to the Base Commander, Sultan Hamud Police Station. 2. She further deposed that the documents, which they seek to introduce, were not available to them at the time when the case was being conducted at the trial court. That the existence of the documents were unknown to the applicants but they were traced by the investigating officer whom she bumped into. It was further deposed that the documents are credible, being official documents received in the course of public duty and authenticity and veracity cannot be impugned. She further deposed that the documents are already admitted in the pending suit E174 of 2023 and if not admitted, it will have an impact on liability as the documents would remove any vagueness or doubt over how the accident occurred. 3. It was urged that it would be in the best interest of justice that the application be allowed, lest there be unfairness in the outcome of the suit. **Submissions** 1. The application was canvassed by way of written submissions. All the parties filed their submissions. Counsel for the applicants/appellants submitted that the matter is not *res judicata* as what the applicant sought before the trial court was a review or variation of judgment delivered on 26/09/2023 in view of a new and important matter or evidence. In the alternative, they sought to set aside the judgment and re-open the applicant’s case and sought leave to file supplementary list of documents. They pointed out that an appeal had already been lodged on 26/10/23 and the application for review of judgment under Order 45 rule 1 was therefore bound to fail. He pointed out that the jurisdiction of the appellate court to admit new evidence is stipulated in section 78 of the Civil Procedure Act where the Court may take additional evidence or require additional evidence to be taken. Counsel noted that the power of the court is discretionary which power must be exercised judiciously and with great caution. 1. He further noted that there exist exceptional circumstances in the instant case. The consolidated suits (E292 of 2022 and E 293 of 2022) were consolidated and determined apportioning liability at the ratio of 50:50%. E174 of 2023 was instituted later and the applicants were enjoined in the suit through a third-party notice dated 29.11.2023 pursuant to the judgment in the consolidated suit. The applicant entered appearance in the suit E174 of 2023 and attached a list of documents including the additional documents sought to be adduced in this appeal. 2. The applicant is apprehensive that if the additional evidence is not allowed in this appeal and admitted in E174/2023, it will likely influence the finding on liability which had already been determined in the consolidated suit hence contradictory decisions on the same accident. 3. The applicant submitted that they should not suffer injustice based on public documents which were not available at the time of trial. She stated that the investigating officer had been transferred and there could have been a mix up or misplacement of files which often occur during transfer. 1. To further support the application, reliance was placed in the case of **EO v COO [2020]** where the court laid down the guidelines for admission of additional evidence before appellate courts. Counsel further submitted that the evidence they seek to adduce will assist the Court to make a just determination in this appeal and no party will suffer any prejudice. 2. The 1st Respondent opposed the application terming it as incompetent, res judicata and an abuse to the courts process and an attempt to re-litigate at the appellate stage. It was submitted that the appellants failed to demonstrate that the evidence they now seek to adduce was not within her knowledge or could have been produced at the trial court with reasonable diligence. 3. Counsel pointed out that the application is anchored on the wrong provisions of the law. It was further pointed out that the application was brought under section 78 (1) (d) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules which is fundamentally erroneous rendering the application defective. It was submitted that the power under section 78 (1) (d) is subject to conditions and limitations prescribed under Order 42 of the Civil Procedure Rules. Reliance was placed on **Ngutuny v Kenya National Highways Authority & Another (Civil Appeal E160 of 2020)** where the court restated the applicable framework under Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules. 4. Counsel further cited the celebrated case of **K. Tramohamed v Lakhani (1958) EA 567** where the court established three- pronged test that an applicant must satisfy for admission of additional evidence. These are (a) evidence could not have been obtained with reasonable diligence for use at the trial; (b) the evidence would probably have an important influence on the result; and (c) the evidence must be credible. Counsel pointed out that the applicants have not met the threshold for the admission of additional evidence. 1. It was also submitted that the application is res judicata. The Appellants had moved the trial court under Order 45 Rule 1 of the Civil Procedure Rules seeking review of judgment on the grounds of discovery of new and important evidence. The trial court heard the application on merit and dismissed it as it did not meet the requirements for review. 2. It was further submitted that the admission of new evidence will re-open the trial and would subject the Respondents to unnecessary and unjust second trial. Counsel stated that the Respondents defended the case based on the evidence on record and introducing new evidence will subject the respondents to endless litigation. 1. Counsel for the 2nd Respondent on the other hand opposed the application terming it as an afterthought and an attempt to patch up weak points in the applicant’s case. Counsel submitted that the Applicant has not demonstrated that the additional evidence could not have been obtained with reasonable diligence at the time of trial. 2. Counsel further pointed out that the appellant has not met the threshold for grant of leave to present additional evidence pursuant to Rule 18 of the Supreme Court Rules, 2012 and the structures established in the case of **Mahamud vs Ahmed Abdullahi Mohamad & 3 others (2028) KLR.** 3. Counselsubmitted that the documents, which the applicants seek to introduce, are not needful for the determination of the appeal and do not remove any vagueness or doubt over the issues litigated at the trial court. 1. It was also submitted that the respondents would be prejudiced since they will not get an opportunity to cross examine the witnesses and test the validity of the documents. **Determination** 1. I have considered the application, the affidavits and the written submissions made on behalf of the parties, the authorities cited and the law. The issue for determination is whether the application has merit and whether the applicants have met the threshold to be granted the orders sought. 2. Section 78 of the Civil Procedure Act provides that- ***“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power-*** 1. ***To determine a case finally;*** 2. ***To remand a case;*** 3. ***To frame issues and refer them for trial;*** 4. ***To take additional evidence or to require the evidence to be taken;*** 5. ***To order a new trial.*** 6. Order 42 Rules, 27, 28 and 29 of the Civil Procedure Rules provide- ***“The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.*** ***Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred, the court shall record the reason for its admission.*** ***Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.*** ***Where additional evidence is directed or allowed to be taken, the court to which the appeal is preferred shall specify the limits to which the evidence is to be confined and record on its proceedings the points so specified.”*** 1. The Court of Appeal in **Wanja vs Saikwa (1984) 275** restated the principles to be considered before granting leave to adduce additional evidence inter alia as follows- *“****The principles upon which an appellate court in civil cases, will exercise its discretion in deciding whether or not to receive further evidence are-*** 1. ***It must be shown that the evidence could not be obtained with reasonable diligence for use at the trial;*** 2. ***The evidence must be such that, if given, it would probably have an important influence on the result of the case.*** 3. ***The evidence is on the face of it credible.*** 1. The rule governing the admission of additional evidence therefore, does not entitle a party applying to bring in contradictory, as opposed to additional evidence, for to do so would mean the case would in effect be re-heard and retried as to the existing facts which cannot have been the intention of the rule. 2. It is noteworthy however, that adducing additional evidence is not a matter of right but an exercise of the Court’s discretion. The Court in [***Dorothy Nelima***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/654/eng%402017-03-10)[***Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017]***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/654/eng%402017-03-10)[***KECA 654 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/654/eng%402017-03-10) 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.”*** 1. The evidence the applicants seek to produce include the rough sketch map plan of the accident/scene, fair sketch map of the accident/ scene, a copy of the covering report, summary findings and recommendations of police investigations, a letter dated 9/11/2022 by the Base Commander Sultan Hamud Police Station to the ODPP and a response letter dated 29/11/2022 by ODPP to the Base Commander, Sultan Hamud Police Station. 2. I have considered the said documents and evaluated each of them against the guidelines and criteria laid down by the Supreme Court in **Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohammad & 3 Others** *(supra).* Specifically; 3. whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this court, and if allowed, whether it would influence or impact the result of the verdict. 4. whether the said evidence could not have been obtained with reasonable diligence for use at the trial and was not within the knowledge of, or could not have been produced by the applicant at the time of trial. 5. It is my considered view that the additional evidence may have an impact on the outcome of the verdict and that it is on the face of it credible however, from the averments of the applicant, this court is of the view that the applicant did not depose/demonstrate the difficulties that she encountered and the due diligence that she undertook to access and produce the documents she now wants to produce. I find that the proposed additional evidence being records held by a public institution, a police station, and critical to the case, could have been discovered with due diligence. 6. In the circumstances, this Court is not convinced that the threshold to adduce new evidence has been attained. The Notice of Motion dated 23rd November, 2025 is therefore not merited and is hereby dismissed. 7. Costs shall abide by the outcome of the appeal. 8. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF AUGUST, 2026** **W.N. MOLONKO** **JUDGE** ***Delivered Virtually in the presence of-*** ***Kinuthia for the Applicant*** ***Ms. Mincha for the1st Respondent*** ***Waweru for the 2nd Respondent*** ***Susan Nzioka- Court Assistant***