https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11795

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E088 OF 2024** **SALOME KAGWIRIA MPUTHIA ……………………..……….. APPELLANT** **VERSUS** **ANDREW MURIUNGI M’MIRITI …………………..….……. T RESPONDENT** **RULING** 1. Coming up for determination is the application dated 10th July 2025, which seeks the following orders: 2. That the honourable court be pleased to grant leave to the appellant/applicant to adduce and file additional evidence espoused in the appellant/applicant’s affidavit. 3. That the honourable court be pleased to grant leave that the new documentary evidence be adduced by way of an affidavit and be filed as a Supplementary record of appeal 4. Costs be in the cause. 5. The application is propped by the grounds set out on the face of it and is supported by the affidavit sworn by the applicant on even date. 6. In a nutshell, the applicant states that she has obtained a crucial document, namely a judgment in Nkubu Civil Suit No. E069 of 2023, which demonstrates that a civil suit had been filed by another innocent purchaser over the same land parcel No. Nkuene/Nkumari/3235. That the judgment came to her knowledge recently during the pendency of this appeal. That the said evidence will demonstrate that the respondent had sold the land in question to third parties, hence buttress her claim that she was not in breach of the agreement between the parties. That the said evidence shall have a key influence on the outcome of the matter, as it will demonstrate the illegal acts of the respondent and his willful deception of innocent buyers. 7. The respondent opposed the application. In his grounds of opposition dated 28th July 2025, the respondent avers that the application is an afterthought whose sole purpose is to try and fill gaps in the appellant’s case. That the intended evidence will not make any significant impact on the result of the appeal as it has no direct bearing on the issues in this appeal. That the evidence if received will be highly prejudicial to the respondent. 8. The parties filed submissions that I will not rehash herein. I will, where necessary refer to them. 9. As was correctly submitted by the parties Order 42 Rule 27 of the Civil Procedure Rules, allow for additional evidence to be adduced an appeal. It is provided as follows: **Production of additional evidence in appellate court [Order 42, rule 27]** **(1) 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.** **(2) 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.** 1. The applicant states that the evidence is newly discovered, having come to know of the judgment in question after the judgment the subject herein was delivered. 2. Both parties referred to the Supreme Court decision in **Mohamed Abdi Mahmud vs Ahmed Abdullahi Mohammad and 3 Others (2018) e KLR**, where the question of additional evidence on appeal was adduced. The court held as follows: **(79) 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 wilful 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.”** 1. In **Ruogi vs Seif and Another (2019) KEHC 12498 (KLR),** and **Kamau vs Wanyoike and 16 Others (2025) KECA 493 (KLR**) the Courts made findings in line with the cited decision of the Supreme Court. 2. It is thus clear that while the court, as an appellate court, has the power to receive additional evidence, such evidence has to be relevant and in the opinion of the court could have a decisive influence on the outcome of the appeal. Further it must be demonstrated that such evidence could not be obtained at the time of the trial in the lower court. In addition, such evidence must be credible though it need not be incontrovertible. 3. The evidence in question is a judgment in Nkubu Civil Case No. E069 of 2023, delivered by Hon. Rose Ongira (SPM) on 11th December 2024. The same was clearly delivered after the suit in the lower court, and the subject of this appeal, was heard and determined. 4. The said judgment is between one John Mutwiri Mbijiwe and the respondent over Land Parcel No. Nkuene/Nkumari (3235). This was the same parcel of land that was the subject of the suit in the lower court. 5. Is that evidence crucial to the case? 6. In the lower court, the appellant’s case was that after she paid part of the consideration, she went to take vacant possession. She found that someone else had deposited building materials on the land. The other suit in question thus shows that the respondent had already sold a portion of the same land to the plaintiff therein. 7. Will the respondent be prejudiced by the evidence to be adduced? 8. I think not, since it merely shows the existence of a suit over the same parcel of land. The respondent will have a chance to counter that evidence as provided by the Rules. 9. Having considered the matter I am inclined to allow the application on the following terms:- 1. **The additional evidence shall be filed in the form of an affidavit herein within the next 14 days.** 2. **The respondent is at liberty to respond to the said evidence by way of a replying affidavit to be served within 14 days after service.** 3. **The affidavits in question shall only be limited to the acknowledgement of the suit and judgment in question and shall not delve into the merits thereof.** 4. **Costs shall be in the cause.** **Dated, signed and delivered at Meru this 23rd day of July 2026.** **H. M. NYAGA** **JUDGE.**