https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5044

## REPUBLIC OF KENYA ## IN THE ENVIRONMENT AND LAND COURT AT KISUMU ## ELCLA E017 OF 2026 ## MICHAEL NAHOLI MUCHILWA……………APPELLANT/APPLICANT ## VERSUS DALMAS OUKO MATHONYE………………………..1ST RESPONDENT KISUMU COUNTY LAND REGISTRAR……………2ND RESPONDENT ## Introduction [1] The matter before this Court is a Notice of Motion dated 23rd April 2026, filed by the Appellant/Applicant, Michael Naholi Muchilwa. The application is brought pursuant to Order 42 Rule 27(1)(b) of the Civil Procedure Rules, Sections 1A, 1B, 3A, and 78(1)(d) of the Civil Procedure Act, Section 19(2) of the Environment and Land Court Act, and all other enabling provisions of the law. The Applicant seeks the following: i) Leave of this Court to adduce additional evidence on appeal. Specifically, leave to adduce the death certificate of one Agai Aboka, issued on 20th September 2018 (Serial No. 504896, Entry No. 07100019/18), and to have it produced as Defence Exhibit. ii) Upon the granting of prayer 1 above, the Appellant be allowed to amend the memorandum of appeal and to file a supplementary record of appeal. ## The Application [2] The application relies on a sworn affidavit by the Appellant, Michael Naholi Muchilwa, dated 23rd April 2026. He states that the Trial Court’s decision to cancel his title was based on fraud allegations made by the 1st Respondent. During the trial, the 1st Respondent admitted to being the vendor in the transaction involving the suit property and confirmed that the Appellant had a purchaser’s interest. Nonetheless, the Trial Court affirmed a title believed to have been issued to the 1st Respondent in 1995, ruling that the subsequent transfer to the Appellant was illegal. [3] The Applicant deposed that in April 2026, after the Trial Court had rendered its judgment, he was summoned to the offices of the Directorate of Criminal Investigations (DCI) in Kisumu to record a statement regarding the suit property. Upon his arrival at the DCI offices, the Appellant discovered that criminal investigations were underway concerning the alleged fraudulent transfer of the suit property from the original owner, Agai Aboka, to the 1st Respondent in 1995. [4] During the interrogation, the DCI showed the Appellant a copy of Agai Aboka's death certificate, which indicated that the original owner died on February 26, 1982. The Appellant then instructed his lawyers to verify the document's authenticity with the Civil Registration Services, who confirmed it was a genuine public record. At the Trial Court, the Kisumu Land Registrar (the 2nd Respondent) presented documents stating that the land was transferred from Agai Aboka to the 1st Respondent in February 1995, and that the deceased appeared before the Land Control Board on January 27, 1995, to seek transfer consent. The Appellant argues that the death certificate proves these documents are forgeries, as it is legally and factually impossible for a deceased person to transfer land or appear before a board thirteen years after death. [5] The Applicant contended that during cross-examination before the Trial Court, the 1st Respondent admitted that he had not undertaken any succession or probate proceedings in respect of the deceased’s estate before transferring the property into his own name. The Appellant argued that the 1st Respondent’s claim to be the deceased’s adopted son is unsubstantiated by any adoption records. The Appellant also points to further anomalies in the Green Card, including a purported sale by the 1st Respondent to one Narinder Singh in 1995, supported by similarly suspect documentation, before the title reverted to the 1st Respondent in 2007. [6] In addressing the requirement of due diligence, the Appellant deposed that the death certificate was never in his possession prior to the DCI summons in April 2026. In conclusion, the Appellant urged that the admission of the death certificate is an absolute necessity to enable this Court to arrive at a just decision. **The Reply** [7] The 1st Respondent filed Grounds of Opposition dated 3rd June 2026, asserting the following: First, the 1st Respondent contends that the application, by its very nature, is frivolous, vexatious, and an abuse of the court process. Second, the 1st Respondent contends that the Appellant had prior knowledge of the evidence. Third, the 1st Respondent argues that the evidence the Appellant intends to adduce is irrelevant and lacks probative value. He contends that the death certificate does not relate to any material issues in dispute as framed before the Trial Court and will not influence the final verdict of the appeal. Fourth, the 1st Respondent submits that the Appellant knew about or had actual possession of the evidence beforehand, meaning that the current application is an attempt to cure gaps after the trial has already concluded. Finally, the 1st Respondent argues that the exhibit is inadmissible. ## Summary of the Submissions [8] The Appellant’s written submissions dated 6th June 2026 highlight two primary issues: first, whether the threshold for admitting additional evidence on appeal has been satisfied; and second, whether the Appellant qualifies for the consequential orders requested. To establish the Court’s jurisdiction, the Applicant references Section 78(1)(d) of the Civil Procedure Act, which, when read together with Section 19(2) of the Environment and Land Court Act, permits the appellate court to admit additional evidence or require its admission if the interests of justice demand it. Additionally, the Appellant cites Order 42 Rule 27 of the Civil Procedure Rules, which governs the production of documents and witness examination during the appellate process. [9] To satisfy the jurisprudential threshold, the Applicant relied on the Supreme Court’s decision in ***Mohammed Abdi Mahamud v Ahmed Abdulahi Mohamad & 3 Others [2018] eKLR,*** on the governing principles for allowing additional evidence in appellate courts: ***“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...”.*** [10] The Applicant submits that the death certificate fulfils these criteria. To contextualise the document’s relevance, the Appellant cited the Supreme Court decision in ***Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR),*** to support the proposition that where a title is challenged on the grounds of fraud or illegality, the protection of indefeasibility falls away. The Applicant argued that once allegations of fraud are raised, the root of title becomes a central issue for determination by the court. The Appellant further argued that, since the 1st Respondent initiated the suit based on allegations of fraud regarding the 2009 transfer, the 1st Respondent inevitably opened the door to scrutiny of the legality of his own 1995 title, which he admittedly sold to the Appellant. [11] The Applicant also cited ***Njenga v Ruto [2025] KEELC 5334 (KLR),*** in which the Court held that additional evidence may be admitted on appeal where the trial court refused to admit it. The Appellant argues that exposing a fundamental illegality rendering the 1st Respondent’s root title void ab initio constitutes a substantial cause that demands the Court’s intervention to prevent the sanctioning of a criminal enterprise. The Appellant concludes that admitting the death certificate causes no prejudice to the Respondents. [12] The 1st Respondent filed written submissions dated 7th July 2026, urging the Court to dismiss the application. The 1st Respondent concurs with the Applicant on the parameters for admitting new evidence as set by the Supreme Court in ***Mohammed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others (supra),*** and further relies on the Court of Appeal’s decision in ***Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR,*** which states: ***“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.”.*** [13] Applying this standard, the 1st Respondent contends that the Applicant has failed to demonstrate the difficulties encountered or the precise due diligence undertaken before the trial that prevented the discovery of the death certificate. The 1st Respondent argues that the Appellant, as a purchaser who claimed to have conducted due diligence before buying the land, had ample opportunity to uncover any anomalies regarding Agai Aboka’s estate during the original transaction or throughout the trial. [14] Additionally, the 1st Respondent relied on the ruling in ***Njambi v Waweru (ELC Case 719 of 2016) [2025] KEELC 6634,*** quoting the Court’s firm stance against admitting new evidence to fill evidentiary gaps after the close of proceedings: ***“In the premises, this Court is satisfied that the present application is an afterthought, brought too late in the day and intended merely to fill gaps in the Defendant's case after the close of the hearing. To allow it would not only offend the principles set out in the authorities cited, but would also undermine the integrity and finality of the trial process...”.*** [15] The 1st Respondent submits that Agai Aboka’s death was never a point of contention before the Trial Court. The sole issue was the breach of a sale contract and the Appellant’s subsequent fraudulent transfer of the property to himself without paying the purchase price. Therefore, introducing a death certificate for a third party to whom the Appellant is unrelated is highly prejudicial. The 1st Respondent further argues that admitting this document on appeal denies him the right to cross-examine witnesses and to test the document’s validity in a trial setting. ## Analysis and Determination [16] The Court has evaluated the parties' rival arguments and finds the question to be whether the Applicant has met the legal threshold to warrant the admission of the death certificate of Agai Aboka at this appellate stage. The analysis begins by setting out the applicable legal framework for applications of this nature. [17] The jurisdiction of an appellate court to receive additional evidence is a discretionary power that must be exercised judiciously, sparingly, and only under exceptional circumstances. The key statutory provision governing this discretion is found in Section 78(1)(d) of the Civil Procedure Act, which empowers an appellate court to take additional evidence or require such evidence to be taken, subject to the conditions prescribed in the Rules. [18] The precise parameters of this power are set out in Order 42 Rule 27 of the Civil Procedure Rules, as follows: *“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.”* [19] The general rule, therefore, is that parties to an appeal are not entitled to produce additional evidence in the appellate court. However, exceptions are carved out under sub-rules (1)(a) and (1)(b), which permit additional evidence if the lower court improperly refused to admit it, or if the appellate court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. [20] The jurisprudence on this matter is firmly anchored in the historical ***Ladd v Marshall 1 WLR 1489*** test, adopted by the Court of Appeal in ***Mzee Wanjie & 93 Others v A.K. Saikwa [1984] KECA 58 (KLR).*** The test sets out three mandatory conditions, as set out in Chesoni Ag JA’s decision: first, the evidence could not have been obtained with reasonable diligence for use at trial; second, the evidence would probably have an important influence on the result of the case; and third, the evidence must be apparently credible. [21] This tripartite test was significantly expanded and codified into an 11-point guideline by the Supreme Court of Kenya in ***Mohammed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others,*** which both parties cited. The apex court cautioned that the admission of new evidence must not undermine the swift conduct of litigation or prejudice the opposing party. The Supreme Court also stressed that the Court must be satisfied that the additional evidence is not used to remove lacunae or fill gaps in the evidence, and that a party who has been unsuccessful at trial must not seek to adduce additional evidence to make a fresh case on appeal. [22] This approach has been consistently restated and applied in subsequent decisions of the Superior Courts. In ***Mainkam Limited & another v Multichoice Kenya Limited [2025] KECA 1596,*** the Court of Appeal rejected an application to adduce bank statements and customs entry forms after an eight-year trial delay, emphasising that equity does not aid the indolent and that speculative documents intended to repair deficiencies in a party’s case are impermissible. The Court specifically stated that: ***“14. Applying these principles to the present case, we note that the suit was before the trial court for eight years, and there was ample opportunity to compel production of the alleged documents. No explanation has been tendered as to why this discovery could not happen earlier with the exercise of due diligence.”*** [23] Similarly, in ***Freedom Limited v Omar Awadh Mbarak SC Petition E009*** of 2024, the Supreme Court disallowed additional evidence on appeal intended to challenge the authenticity of a root title. The Court held that a party who initiates an action is expected and required to bring their entire evidence at the trial stage, warning that introducing new documents on appeal to answer questions raised by an adverse judgment is tantamount to sanctioning litigation by instalments. The Court outlined the following guidelines in paragraph 6(iii) of the decision: ***“To these strictures, the Court has espoused the following further criteria to be considered in an application of this nature: “a. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; b. 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; c. where the additional evidence discloses a strong prima facie case of willful deception of the court; d. 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; e. 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; f. 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.”*** [24] The Applicant asserts that the death certificate was not in his possession and that he only became aware of its existence after a summons from the DCI in April 2026. The 1st Respondent counters that, as a purchaser of the land, the Applicant ought to have conducted comprehensive due diligence before the transaction and during the trial process. [25] The standard of “reasonable diligence” does not require absolute perfection in the search, but rather the steps reasonably expected of a vigilant litigant. Discovering a third party’s 1982 death certificate to prove that a 1995 transaction was fraudulent may indeed fall outside the scope of ordinary pre-trial discovery, particularly when the document only surfaced through criminal investigations. However, assuming that the Applicant satisfies the test of due diligence and that the document’s credibility as an official public record is accepted, this Court must still consider the impact the document will have on the substance of the appeal. [26] The Applicant’s primary objective in this appeal is to overturn the Trial Court’s judgment cancelling his 2009 title and to reinstate himself as the lawful registered proprietor of the suit property. Yet the introduction of Agai Aboka’s death certificate creates a legal paradox for the Applicant. The certificate purports to prove that Agai Aboka died in 1982. From the record, the 1st Respondent acquired his title via a purported transfer from Agai Aboka in 1995. If it is established as a matter of fact that the 1995 transfer is a forgery and a nullity because the vendor was deceased, the 1st Respondent’s title would be void ab initio. This legal reality then triggers the operation of the *nemo dat quod non habet* principle: no one can give what they do not have. Arguably, if the 1st Respondent possessed no valid title in 1995, he was legally incapable of transferring any valid title to the Applicant in 2008 or 2009. Therefore, by introducing evidence that proves the 1st Respondent’s root title is a forgery, the Applicant inadvertently but inevitably destroys the legality of his own title. He would not assert a good title derived from a person whose acquisition was inherently tainted and fraudulent. [27] Admitting the death certificate would completely alter the appeal’s trajectory, character, and substance. The appeal would shift from a dispute over whether the Applicant validly entered into a purchase contract with the 1st Respondent to a systemic inquiry into fraud, forgery, and the nullification of the entire chain of titles dating back to 1982. As the Supreme Court cautioned in ***Freedom Limited v Omar Awadh Mbarak*** and as explicitly set out in the ***Mahamud*** guidelines, an appellate court cannot admit additional evidence if it allows an unsuccessful party to *“make a fresh case in appeal”.* [28] Admitting evidence that radically alters the cause of action, from a breach of contract and fraudulent transfer by a subsequent purchaser to a nullity of the root title via identity fraud involving a deceased person, amounts to instituting an entirely new suit at the appellate level. This is bound to offend the right to a fair trial as enshrined in Article 50(1) of the Constitution. It strips the 1st Respondent of the right to contest the authenticity of the death certificate or to call rebuttal witnesses. [29] In this Court’s opinion, the most appropriate, legally sound, and procedurally correct avenue for a party who discovers new, compelling, and potentially case-altering evidence after a judgment has been rendered is to return to the forum of first instance and invoke the provisions of Order 45 Rule 1(1) of the Civil Procedure Rules. The Applicant is at liberty to file an application for review and/or setting aside of the judgment pursuant to Order 45 Rule 1(1) of the Civil Procedure Rules which provides for a review of a decree or order based on *“the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made.”* [30] The Trial Court is the only forum equipped to evaluate the impugned transaction on the merits in light of this new evidence. Only before the Trial Court can the judgment be set aside, the pleadings amended to reflect the new allegations of fraud regarding the 1982 death, and the case reopened. Such a forum would have the capacity to issue witness summonses to the DCI officers investigating the alleged fraud, the Directorate of Civil Registration officials to authenticate the death certificate, and the Land Registrar to explain the anomalous entries. It would also allow for proper cross-examination and the admission of rebuttal evidence by the 1st Respondent. I reckon that the appellate court is structurally unsuited for such a fact-finding inquiry, particularly when the new evidence undermines the foundation upon which the appeal was initially lodged. **Final Orders** [31] Consequently, I make the following final orders: i) The Notice of Motion application dated 23rd April 2026 seeking leave to adduce additional evidence on appeal is devoid of merit and is hereby dismissed. ii) Thecosts of this application shall abide the final outcome of the main appeal. **Delivered virtually, dated and signed this 30th day of July 2026** **C.C. Oluoch** **Judge** In the presence of: Mr Odhiambo D for the Appellant/Applicant Ms Macogot for the Respondent Faith Court Assistant