https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9958

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E032 OF 2021** **MAGUNA ANDU WHOLESALERS (K) LTD ….………….. APPELLANT** **VERSUS** **SIMON NJUGUNA NJAURA (Suing as the Administrator of the Estate of Julia Wanjiru – Deceased) ………….…. 1ST RESPONDENT** **TONUI E. KIPKORIR …………………………..…….. 2ND RESPONDENT** **EPHANTUS KIBIRU ……………………………………3RD RESPONDENT** **ALISSA ADAM …………..………………………………4TH RESPONDENT** **RULING** 1. The application before the court is dated 9th September 2024 brought under Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42, Rule 27(b) and Order 42 Rule 28 of the Civil Procedure Rules and any other enabling provisions of the law. The Application is brought by the 1st Respondent in which he seeks for leave to file additional evidence by way of filling the public documents relating to the salaries and remuneration of the concerned personnel. 2. The application is premised on the grounds set out on the face of the application summarized as follows: 3. *The additional evidence consists of a public document that will assist the Court in assessing damages on a comparative basis, thereby aiding in the just determination of the appeal.* 4. *The public document was relied upon at the stay application but inadvertently not formally produced at trial for which Counsel for the 1st Respondent is apologetic for the oversight.* 5. *The matter arises from a fatal accident caused by the appellants’ negligence, where liability has already been established. The claim concerns loss of life, pain, loss of amenities, and damages suffered by the 1st Respondent following the death of his daughter.* 6. *The deceased, posthumously admitted to university, would reasonably have earned an entry-level graduate salary. Judicial notice can be taken of fresh graduate salaries in the public sector as outlined by the Salaries and Remuneration Commission, ranging between Kshs. 40,000–60,000 per month.* 7. *The appellants deliberately failed to acknowledge or address known graduate salary levels, unlike the 1st Respondent who relied on them in submissions.* 8. *The public document is directly relevant, arose over time, and could not reasonably have been anticipated at trial. Its production now ensures fairness, comparative evaluation alongside appellants’ own public documents, and compliance with Article 50(2) of the Constitution guaranteeing a fair trial.* 9. The Application is supported by an affidavit sworn by the 1st Respondent wherein he reiterates the grounds on the face of the application. 10. The application is opposed by the Appellant who filed a replying affidavit sworn by its manager, Joseph Ndonga Muraya. He states that the Notice of Motion dated 9th September 2024 has been filed in bad faith, lacks merit, and amounts to an abuse of the court process for the reason that the parties had already taken substantive directions, with the court ordering that the appeal be canvassed through written submissions. Those directions were complied with and have not been set aside, making the present application irregular. 11. He further avers that when the matter came up for highlighting of submissions on 28th May 2024, the court ordered the 1st Respondent/Applicant to file the instant application within seven days meaning that it ought to have been filed by 4th June 2024. However, the application was filed on 9th September 2024 outside the court’s timelines without leave, and is therefore incompetent. The Appellant had already filed its submissions dated 20th February 2023, to which the 1st Respondent responded with submissions dated 27th September 2023. The Appellant then filed supplementary submissions on 29th April 2024, extinguishing the 1st Respondent’s right of rejoinder. The matter was thus ripe for highlighting of submissions. 12. The affidavit also emphasizes that the Appellant demonstrated in its submissions at the trial court how the subordinate court applied an incorrect multiplicand and multiplier, relying on authorities cited in paragraphs 1–6 of its written and supplementary submissions. On cross-examination in the subordinate court, the 1st Respondent admitted that the deceased had not been admitted to the University of Nairobi at the time of her death. Consequently, the authorities relied upon by the 1st Respondent, including ***Stella Awinja*, *Sheikh Hussein v Nathan Mwangi Transporter*, and *Betty Ngatia v Samuel Kinuthia Thuitha (1999) eKLR***, do not fit the circumstances of this matter. The documents the 1st Respondent seeks to introduce do not raise any probative value and leave must therefore be declined. 13. It is further deposed that the deceased’s income was not proved in the subordinate court, and the parastatal guidelines the 1st Respondent seeks to file cannot be used to prove income, as guidelines are not evidence of earnings. For these reasons, the application should be dismissed with costs for want of merit and for non-compliance with the court’s directions. 14. The 1st respondent filed submissions in support of his application dated 12th August 2025, wherein he states the new document/evidence is critical to ensuring a just determination of this matter and meets all legal requirements for admission at this stage. He states that this new document is critical to ensure substantive justice and a conclusive determination of this appeal. He relies on Section 4o of the Evidence Act, Cap 80 Laws of Kenya which provides: **“40. Statements of fact contained in laws and official gazettes, etc.** *When the court has to form an opinion as to the existence of any fact of a public nature, any statement of it shall be admissible which is made—(a)in any written law of Kenya, or in any notice purporting to be made in pursuance of any such written law, where the law or notice (as the case may be) purports to be printed by the Government Printer; …”* 1. The Appellant, Maguna Andu Wholesalers (K) Ltd, challenges the 1st Respondent’s bid to introduce new evidence at appeal, arguing the application was filed late, in bad faith, and contrary to prior court directions. They stress that both parties had already exchanged submissions, and the Respondent lost the right of rejoinder after supplementary submissions were filed. 2. They contend the documents sought—parastatal salary guidelines—were public and available at trial, but cannot prove the deceased’s income. Citing authorities like **Karmali Tarmohamed v Lakhani** and **Mohamed Abdi Mahamud v Ahmed Abdullahi,** the Appellant emphasizes that appellate courts only admit fresh evidence under strict conditions, which the Respondent has not met. 3. Finally, the Appellant warns that allowing the application would prejudice them, prolong the appeal, and undermine the constitutional principle of expeditious justice. They urge dismissal of the application with costs, so the main appeal can proceed to highlighting of submissions. 4. Upon reviewing the application together with the supporting affidavit, responses, and submissions, the sole issue for determination is whether the Appellant has shown sufficient cause to warrant leave to adduce additional evidence on appeal. In so doing, I have to determine whether the application has met the requisite threshold for admission of new evidence at the appellate stage. 5. Section 78(1)(d) of the Civil Procedure Act empowers this court, in the exercise of its appellate jurisdiction, to admit further evidence or to direct that such evidence be taken. Complementing this provision, Order 42 Rules 27–29 of the Civil Procedure Rules outlines the limited circumstances under which such evidence may properly be received. 6. The guiding principles have been crystallized by the Supreme Court in **Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR***,* which set out a three‑part test: 7. *It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;* 8. *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;* 9. *The evidence must be apparently credible, though it need not be incontrovertible.* 10. In the instant case the appellant seeks to introduce a Public Service Guidelines on remuneration which the 1st respondent/applicant claims were inadvertently not produced at the trial but will help assist the Court in determining whether the judgment by the trial Court was excessive or was within range of awards for similar cases. 11. The document sought to be produced is said to be a public record, albeit one subject to periodic revision. However, applying the three‑part test in **Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & 3 Others** (**Supra**), I find the application wanting. First, the evidence was available at trial and could have been obtained with reasonable diligence. Second, no sufficient demonstration has been made that its admission would materially influence the outcome of the appeal. Third, while the document may be credible, credibility alone cannot cure the failure to satisfy the other limbs of the test. Accordingly, the application does not meet the threshold for admission of additional evidence on appeal. 12. Furthermore, The Public Service Guidelines on remuneration constitute a public record, the existence and content of which this Honourable Court is entitled to take judicial notice under the Evidence Act. Judicial notice obviates the need for formal production of such a document, as the Court may rely upon it without recourse to the procedure of admitting additional evidence on appeal. 13. Accordingly, the attempt to introduce the Guidelines through a formal application for leave is superfluous and amounts to an abuse of process. The Court’s jurisdiction to take judicial notice ensures that relevant public records are available to inform its decision without burdening the appellate process with unnecessary interlocutory applications. 14. For the foregoing reasons, ***I find that the application is misconceived and I hereby dismiss it with costs to the Appellant.*** 15. ***Thirty (30) days stay of execution is hereby granted.*** **Dated, Signed and Delivered Virtually on this 2nd day of July, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Kihara for 1st Respondent Wambui Miring’u for Mrs Mangua for protestors Nyabuto – Court Assistant