https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3533

Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3533 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Environment and Land Appeal E013 of 2025 JM Kamau, J June 11, 2026 Between Michael Kirechu Karuu Appellant and Joseph Mwathi Kitonga Respondent Ruling 1.In the Amended Plaint dated 24/11/2022, the Respondent sued the Appellant on behalf of and as personal representative of the Estate of Beth Gakonyo Karari as the Estate’s Administrator. He averred that Beth Gakonyo Karari was the registered owner of land parcel No. Nyandarua/Ol - Kalou Salient/503 within Ol - Kalou on which she had settled and developed. The Plaintiff’s father, David Karari Kiruku then died in 2000 and was buried on the suit land. Beth later died at the age of 98 years on 6/6/2020 and was equally buried on the suit land leaving the Respondents and his siblings settled on the land which they knew as their mother’s who had bought from one Wayua Mutunga until 21/11/2022 when the Appellant demanded that they move out only for then to discover after a search that the land had already changed ownership, albeit unlawfully, to the Appellant. The Respondent then accordingly prayed for: -a.A permanent order of injunction restraining the Appellant, agents, workers, family members or anybody else claiming to have authority from the Appellant from entering, trespassing, alienating or encroaching on the suit land - Nyandarua/Ol - Kalou Salient/503.b.The Appellant’s Title to the land be cancelled.c.The land Nyandarua/Ol - Kalou Salient/503 do revert to the name of the Respondent.d.Costs of the suit.e.Any other or further relief the Court would deem fit and expedient to grant. 2.The Appellant filed a Defence and Counter-claim dated 29/8/2023 and denied the Respondent’s claim and further averred that he and 7 others had jointly purchased the suit land from the Respondent’s mother - the late Beth Gakonyo Karani in 1998 at a total consideration of Kshs. 20,000/- and that the mere fact that the Respondent’s parents were buried on the suit premises does not defeat the Appellant’s Title. He claimed that they were in possession of the suit land and that he and his co-purchasers had allowed the late Beth to occupy a quarter of an Acre of the land on humanitarian grounds due to her very advanced age. In the Counter-claim, the Appellant averred that the Respondent took advantage of their mother being given a portion of the land to occupy by the Appellant and other purchasers to unlawfully and illegally occupy the suit premises claiming ownership of the same. He claimed the suit was time-barred by dint of the Limitation of Actions Act and asked the Court to grant him Judgment for:-a.A Declaration that the Respondent and his siblings were trespassers on L.R No. Nyandarua/Ol - Kalou Salient/503 from which they should be ordered to vacate forthwith and in default they be forcibly evicted therefrom.b.The officer commanding Ol - Kalou Police Station be ordered and/or authorized to provide security during the eviction of the Respondent from the suit land.c.Costs of the suit together with interest at Court rates.d.Any other or further relief the Court may deem fit or just to grant. 3.In the reply to the Defence and Defence to the Counter-claim, the Respondent repeated the averments in his Amended Plaint and denied that his late mother had sold the suit land to the Appellant and that his mother would not have legally sold the land to the Appellant for want of capacity as at 26/7//1991 since he became so registered as pr5oprietor on 9/10/1998 – 7 years later. 4.On the issue of the suit being time-barred, the Respondent averred that they only came to know that the land was in the name of the Appellant when they sought to file a Succession Cause in respect to the Estate of their mother. He therefore urged that the Defence and Counter-claim be dismissed with costs and that his prayers in the Plaint be duly granted. 5.The case was heard and concluded on the 11/3/2025. Judgment was then delivered on 27/5/2025 by the Honourable H. Adika, Senior Principal Magistrate, dismissing the Counter-claim and issuing the following orders in favour of the Respondent.a)A declaration that the transfer of the parcel of land known as Nyandarua/Olkalou/Salient/503 to Michael Kirechu Karuru was illegal and unprocedural and is hereby cancelled.b)That the said parcel of land known as Nyandarua/ Olkalou /Salient/503 does revert back to the name of Beth Gakonyo Karari as indicated in the green card as at 9th October 1998.c)A permanent injunction is issued restraining the defendant, his agents, workers, family members, assigns or any other person claiming to have authority or instructions from the defendant from entering, alienating, encroaching or remaining on the said parcel number Nyandarua/Ol kalou/Salient/503.d)The plaintiff shall get the costs of the suit with interest from the date of this judgment. 6.The Appellant being dissatisfied with the said Judgment filed a Notice of Appeal dated 16/6/2025 urging that the Appeal dated 11/8/2025 be allowed, the order of the learned trial magistrate dismissing the Appellant’s Counter-claim be set aside and that the same be substituted with an order dismissing the Respondent’s suit together with costs. The Grounds of the said Appeal are:-1.The learned trial magistrate erred in law and in fact by basing his findings on procedural technicalities instead of applying substantive justice leading to a gross miscarriage of justice to the detriment of the Appellant.2.The learned trial magistrate erred in law and in fact by finding that the Appellant had not demonstrated how he had come to be registered as the proprietor of the suit property.3.The learned trial magistrate erred in law and in fact by finding that it was incumbent upon the Appellant to demonstrate that all legal procedures were properly followed leading to the transfer of the title into his own name.4.The learned trial magistrate erred in law and in fact by relying on the Respondent’s copy of green card which contained entries not found in the title in addition to finding that the deceased never owned the suit land.5.The learned trial magistrate erred in law and in fact by proceeding as though there were two or more conflicting titles to the suit land yet only one (1) title existed in the name of the Appellant- a factor which had he properly addressed himself to would have led to a finding in favour of the Appellant.6.The learned trial magistrate erred in law and in fact by finding in favour of the Respondent yet it had not been proved that the Appellant had obtained the title to the suit land through fraud and misrepresentation to which the Appellant was a party.7.The learned trial magistrate erred in law and in fact by failing to find in favour of the Respondent yet there was no evidence to the effect that the certificate of title had been acquired by the Appellant illegally, unprocedurally or through a corrupt scheme in which the Appellant was involved.8.The learned trial magistrate erred in law and in fact by failing to find that it behoved the Respondent to call the County Land Registrar as a witness or as a party to challenge the Appellant's title to the suit land which factor had he addressed himself to would have led to the dismissal of the Respondent's suit.9.The learned trial magistrate erred in law and in fact by failing to invoke the provisions of Section 19(1) of the Environmental and Land Control Act (No. 19 of 2011) and Article 159 (2) (d) of the Constitution, 2010 which sections of the law had he considered would have led to a verdict in favour of the Appellant. 7.Just before filing the Record of Appeal, on 20/1/2026 the Appellant filed an Application dated 17/2/2026 seeking for orders that: -a.This Court be pleased to grant leave to the Appellant to adduce additional evidence in this Appeal by summoning the County Land Registrar, Nyandarua County to produce the file in respect of L.R No. Nyandarua/Ol - Kalou Salient/503.b.Should this Application be allowed the Appellant be granted leave to file a Supplementary Record of Appeal.c.The costs of this Application be provided for. 8.The Application is supported by the Affidavit of the Appellant and on grounds on the face of the Application that: -a.The additional evidence sought is directly relevant to the matter before Court and is in the interest of justice.b.The Evidence if given would influence or impact upon the result of the verdict.c.The evidence could not be obtained with reasonable diligence for use at the trial for it was not within the knowledge of and could not have been produced at the time the hearing of the Court was going on.d.The evidence is credible and would remove any vagueness or doubt over the case.e.The evidence is not so voluminous so as not to be responded to.f.The evidence is not intended to fill gaps in the evidence given.g.The new evidence is not meant to make a fresh case in the Appeal.h.No prejudice would be occasioned to the Respondent if the evidence is granted. 9.The Respondent in a Replying Affidavit sworn on the 25/2/2026 depones that the Application is misconceived, incompetent and an abuse of the Court process and that having actively participated in the trial, the Appellant had full opportunity to present all the evidence he deemed necessary and that there is nothing to show that the said evidence was unavailable at the time of the hearing and that the County Registrar, Nyandarua was unavailable at the time of the hearing of the case in the trial Court who all along had the custody of the Documents sought. He depones that the Green card was produced by consent and that the Appellant had an opportunity to call the Land Registrar to denounce it. He says that the Appellate Court is not a forum for a party to rebuild one’s case and that this Application is an afterthought intended to cure deficiencies in the Appellant’s case in the lower Court. The Application is therefore opposed as being prejudicial to the Respondent and that in the interest and finality of litigation the Appellant’s Application be dismissed. 10.Submitting additional evidence allows you to introduce new information, documents, or testimony into an ongoing or appellate court case. To successfully file this in Kenyan courts (like the High Court or Supreme Court), you must file a formal application demonstrating that the evidence is relevant, credible, and was impossible to obtain during the initial trial despite reasonable diligence. 11.On Production of additional evidence in appellate court under Order 42, Rule 27] (1) of the Civil Procedure Rules, 12.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—(a)the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or(b)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. 13.In the Supreme Court of Kenya (Coram: Koome; CJ & P, Ibrahim, Wanjala, Njoki & Ouko, SCJJ.) Petition (application) No. 7 Of 2017 Patrick Thoithi Kanyuira ―vs― Kenya Airports it was held that:…….………once a party brings before the court his entire case, he will be bound by the resulting decision and will not be permitted to re-open that decision on the basis of matters which could have been raised, but which were not at the trial…………” 14.The English Court of Appeal in the case of Ladd v. Marshall [1954] 1 WLR 1489 established three-part test, namely, non-availability, relevance and reliability, for the appellate Court to accept fresh evidence in a case on which a judgment has already been delivered. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that;………..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………” 15.But if, subsequent to the judgment, and before the decision of the appellate court, the appellant wishes to present evidence that he ought to have tendered at the trial but did not, certain prescribed conditions must be satisfied. The English Court of Appeal in the case of Ladd v. Marshall [1954] 1 WLR 1489 established three-part test, namely, non-availability, relevance and reliability, for the appellate Court to accept fresh evidence in a case on which a judgment has already been delivered. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that; “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, 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: thirdly, 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”. 16.Minister for Health & another v. Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (interested parties) 2019 eKLR, Raila Odinga & 5 Others v. Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR; and Pop –In (Kenya) LTD & 3 Others v. Habib Bank AG Zurich [1990] eKLR, the Respondent has argued us to find that the Applicant, who has been unsuccessful at the trial and first appellate court, is seeking, through the instant application, to make a fresh case, fill up weak points in his case, is barred by the doctrine of res judicata, and has also not demonstrated that the evidence would not have been obtained with reasonable diligence for use at the trial. [19] Finally, the respondent urge that they stand to suffer g 17.In Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] KECA 677 (KLR), the Court declared the circumstances under which additional evidence may be admitted, expanding three-part test in Ladd v. Marshall [supra] as follows; 18.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 would 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 made aware of and procured the further evidence in the course of the 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 the 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 the 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.” 19.The Court also stressed that, in exercise of its absolute discretion, it will only allow additional evidence sparingly and with abundant caution on a case-by-case basis. 20.The Court of Appeal in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) 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.” 21.The Court of Appeal in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether 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 trial by the applicant…………………..” 22.In Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7 March 2025) the Court observed:……………..The jurisdiction of this Court under Article 164 (1) of the Constitution and Section 3 (1) of the Appellate Jurisdiction Act is limited to hearing of appeals. Parties are expected to present all the primary evidence before trial courts. Although this is the case, under this Court’s Rules, there is an exception created under rule 31 (1) (b) and (c) (supra) which recognises situations which may arise making it imperative for a party to adduce evidence at the appeal stage……………………. However, adducing additional evidence is not a matter of right but an exercise of the Court’s discretion. This Court in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) 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……………...On the application of Rule 31 (1) (b) and (c) Chesoni, Ag. JA in Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462 held that: -This Rule is not intended to enable a party who has discovered fresh evidence to import it nor is it 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 lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the Rule were used for the purpose of allowing parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the Rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence…………….We must add with caution that the bench seized with the hearing and determination of an application of this nature should restrain from delving into the merits and demerits of the main appeal. That will be the preserve of the bench that will be seized of hearing the main appeal.……………………………… We must add with caution that the bench seized with the hearing and determination of an application of this nature should restrain from delving into the merits and demerits of the main appeal. That will be the preserve of the bench that will be seized of hearing the main appeal……………………………….” 23.The Court of Appeal in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether 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 trial by the applicant……………………” 24.I agree with the Respondent that the evidence sought to be adduced was all along available. All that was needed to be done is to have the Land Registrar summoned or call him as a witness to produce the parcel file in Court which file contains all the relevant information or in the alternative apply for an abstract of Title.Accordingly, the Application dated 15/4/2026 is hereby dismissed with costs. RULING DATED, SIGNED AND DELIVERED AT NYANDARUA THIS 11TH DAY OF JUNE, 2026.MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: Samson.Appellant’s Counsel: Mr. Njihia.Respondent’s Counsel: Mr. Munyiriri.