https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4315

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL NO. E002 OF 2026** **EUSTACE KITHINJI MUTEA......................................APPELLANT** **VERSUS** **ABDULLAHI MUHAMUD HALAKE.................................1ST RESPONDENT** **DIKO HUKA GODANA........................................................2ND RESPONDENT** **COUNTY GOVERNMENT OF ISIOLO.............................3RD RESPONDENT** **RULING** 1. Before me is the Notice of Motion Application dated the 19.05.2026, brought pursuant to the provisions of Sections **1A, 1B, 3A and 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 42, Rule 27 Of The Civil Procedure Rules, 2010;** and **Article 159 of the Constitution, 2010** and wherein the appellant/Applicant*[hereinafter referred to as the applicant]* has sought various reliefs: 2. The reliefs sought *vide* the application are: 3. ***.......................................................................................................spent.*** 4. ***That this Honourable court be pleased to take additional documentary evidence identified in the appellant’s supporting affidavit and marked “EKM01 -021”*** 5. ***That the Honourable court be pleased to grant leave that the additional documentary evidence be adduced by way of an affidavit and filed as a supplementary record of appeal.*** 6. ***That the Respondents be at liberty to file a replying affidavit, if any, to the supplementary record of appeal.*** 7. ***Costs of this application abide the outcome of the appeal.*** 8. The application is premised on various grounds. The grounds are: The Applicant filed a suit before the lower court, namely; Isiolo CMELC NO. 21 of 2019; the suit before the lower court touched on and concerned ownership of LR No. Isiolo Township/Block II/245 [sic] belonging to the applicant; the 1st respondent duly entered appearance and filed a statement of defence and counter claim; the 1st respondent claimed the same property *vide* LR No. Isiolo Chechelesi Block 172; the suit in the lower court was heard and disposed of *vide* Judgment delivered on the 12.02.2026; the lower court dismissed the applicant’s suit; the lower court found that the Applicant had not established the root of his title; and the lower court entered Judgment in favor of the 1st respondent. 9. Additionally, the Applicant has posited thus: The previous advocate did not advice the Applicant about the importance of certain documents; upon the dismissal of the applicant’s suit, the Applicant sought and obtained advise from the current advocates; the current advocate[s] thereafter advised on the necessity to procure various documentation from the ministry of lands and department of survey; the Applicant approached the ministry of Land and procured various documents; the documents are contended to be official records relating to ownership and title to the suit property; and the documents are said to be critical to the determination of the dispute before the court. 10. Moreover, the Applicant has contended that: the documents which are sought to the produced *vide* additional evidence were not within the custody/knowledge of the applicant; the Applicant could not have procured the named documents at the time when the suit in the lower court was heard; the failure to procure the documents was not informed by want of diligence; and the Applicant is not seeking to fill up the gaps that were pointed out by the trial court. 11. Furthermore, the Applicant has also averred that: the documents sought to be tendered before this court were part of the record[s] of the ministry; the documents would remove ambiguity and vagueness as pertains to the root of the applicant’s title; and the Respondents shall not suffer any prejudice or injustice. In addition, it has been posited that the respondents shall be at liberty to file a replying affidavit to the supplementary affidavit, if and where necessary. 12. The instant application is premised on the affidavit sworn by Eustace Kithinji Mutea [deponent] and which affidavit is dated the 19.05.2026. The deponent of the supporting affidavit has reiterated and reaffirmed the grounds at the foot of the application. Furthermore, the deponent has annexed assorted documents, namely; the documents which are sought to be produced via additional evidence. 13. The 1st and 2nd respondents have opposed the application *vide* replying affidavit sworn on the 10.06.2026. The replying affidavit has been sworn by one Abdullahi Muhamud Halake and wherein the deponent has highlighted various issues. The issues are: The documents sought to be produced *vide* additional evidence were documents which were available at the ministry of lands; the documents date back to the year 1995; the documents could have been procured long before the filing of the suit in the lower court; the failure to procure the documents is informed by lack of diligence; and the subject application is inspired by mala-fides. 14. In addition, the deponent of the replying affidavit has equally posited that the Applicant herein is merely keen to fill up the gaps that were pointed out/highlighted in the body of the Judgment. Besides, it has been averred that the admission of the proposed documents, if at all, shall prejudice the rights and interest of the Respondents; and occasion a miscarriage of justice. 15. Flowing from the foregoing averments, the deponent of the replying affidavit has invited the court to find and hold that the application before the court is bereft of merits and thus same ought to be dismissed. To this end, the deponent has implored the court to dismiss the application and to award costs to the respondents. 16. The application came up for the hearing on the 11.06.2026, whereupon the advocates for the parties intimated to the court that same were ready to proceed. Thereafter, the court issued directions. The directions were to the effect that the application shall be canvassed and disposed of *vide* oral submissions. 17. The advocate for the Applicant adopted the grounds at the foot of the application; reiterated the contents of the supporting affidavit; reaffirmed the annexures and thereafter highlighted two [2] key issues: The issues are: Whether the court is seized of the requisite jurisdiction to entertain and adjudicate upon the subject application; and whether the Applicant has met/satisfied the threshold for production of additional evidence or otherwise. 18. Learned counsel for the 1st and 2nd respondents adopted the contents of the replying affidavit sworn on the 10.06.2026 and thereafter highlighted four [4] issues. The issues are: Whether the subject application has been mounted timeously or otherwise; whether the documents sought to be produced could have been availed by the Applicant at the time of the hearing; whether the admission of the additional documents would prejudice the Respondents and occasion a miscarriage of justice; and whether the application is intended to fill up the gaps that were pointed out vide the Judgment of the lower court. 19. Having reviewed the application; the supporting affidavit thereto; the replying affidavit filed in opposition to the application; and considering the oral submissions by/on behalf of the respective advocates; and bearing in mind the import and tenor of **Sections 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya**,as read together with the provisions of **Order 42 Rule 27 of the Civil Procedure Rules, 2010**; two [2] key issues emerge for consideration and determination. The issues are: Whether the Applicant has met/satisfied the threshold for admission of additional evidence or otherwise; and whether the Respondents shall be exposed to suffer prejudice and grave injustice, if the documents are introduced at this stage of the proceedings. 20. Regarding the first issue, it is imperative to state that any claimant seeking to procure leave of the court to tender and produce additional evidence, the current Applicant not *excepted*, is enjoined to establish certain parameters. In particular, it is incumbent upon such an applicant to demonstrate *inter alia,* that the documents which are sought to be produced were not within the custody of the Applicant at the time when the trial was undertaken; or the documents could not be procured despite exercise of due diligence. In addition, it is also important to underscore that the documents sought to be produced are of critical importance and relevance; and that their production [subject to leave] shall enable the court to unravel the controversy attendant to the dispute. 21. Moreover, it is also important to underscore that the additional documents sought to be produced must not be intended to cure; fill up; or plug the loopholes [if any] that were pointed out by the trial court. For good measure, an Applicant cannot be allowed to use the Judgment of the trial court and the reasoning thereunder, in an endeavor to better his/her case at the appeal stage. To do so, would be tantamount to encouraging litigation by installments; ambush; or surprise. Simply put, a party cannot use the wisdom of the trial court and thereafter turn round and procure favorable orders at the appeal stage by innovation, under the guise of [sic] additional evidence. 1. Other than the foregoing, it is common ground that an Applicant must place before the court evidence to show the efforts [if any] that was made to procure the document during the trial. Suffice it to state that the provisions of **Article 35 of the Constitution, 2010** and the **Access to Information Act, 2015,** contain/provide avenues that the Applicant ought to have deployed, to procure the documents, if the Applicant was keen to do so. 2. Has the Applicant met the parameters? I wish to state that the only reason which has been advanced by the Applicant is to the effect that his previous advocate did not advise same on the necessity to procure and obtain the named documents. However, it is not lost on me that the Applicant herein was the one, who was staking a claim to ownership of the suit property, and therefore needed to have availed all the documents underpinning his claim. 3. Additionally, even though the Applicant is now blaming the previous advocate, there is no evidence that the Applicant ever informed the previous advocate [if at all] about the documents now sought to be tendered. Moreover, there is no gainsaying that the documents under reference are documents which, with the exercise of diligence, could have been procured. 4. I am afraid that the subject application, is a disguised attempt by the Applicant to plug and fill in the gaps that were pointed out by the learned trial magistrate. The Applicant cannot use or deploy the provision for adduction of new evidence, to defeat, or circumvent, the Judgment of the trial court. That would amount to having a second bite on the cherry of Justice. 5. In the case of **Mahamud v Mohamad & 3 others [2018] KESC 62 (KLR)**, the supreme court was confronted with an application for adduction of additional evidence. The apex court reviewed various decisions from comparative jurisdictions and thereafter, rendered themselves as hereunder: ***‘There are no authorities on what principles or conditions this Court may allow an Application such as the present, but our opinion is that authorities or decided cases which are relevant to this Court's discretion to admit additional evidence on appeals to it do provide useful guidance for that purpose and are of persuasive value. We have in mind: Ladd Vs Marshall (1954) 3 All ER 745 at 148 Skone Vs Skone (1971), 2 All ER 582 at 586; Langdale Vs Danby (1982) 3 ALL ER. 129 at 137; Sadrudin Shariff Vs Tarlochan Singh (1961) EA.72, Elgood Vs Regina (1968) EA 274; American Express International Vs Atulkimar S. Patel, Application No.8B, of 1986 (SCU) (unreported); Karmali Vs Lakhani (1958), EA.567 and Corbett (1953), 2 ALL ER, 69. A summary of these authorities is that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:*** ***(i)Discovery of new and important matters of evidence which, after the exercise of due diligence, 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;*** ***(ii)It must be evidence relevant to the issues;*** ***(iii)It must be evidence which is credible in the sense that it is capable of belief;*** ***(iv)The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;*** ***(v)The affidavit in support of an Application to admit additional evidence should have attached to it, proof of the evidence sought to be given;*** ***(vi)The Application to admit additional evidence must be brought without undue delay.*** ***These have remained the stand taken by the courts, for obvious reasons that there would be no end to litigation unless a court can expect a party to put its full case before the court. We must stress that for the same reason, courts should be even more stringent to allow a party to adduce additional evidence to re-open a case, which has already been completed on appeal.”*** 1. Recently, the supreme court revisited the question of adduction of additional evidence at the appeal stage in the case of **Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others [2026] KESC 30 (KLR). The apex court stated thus:** ***“ix............................................................................................................*** ***x. On whether leave should be granted to the Applicantto adduce additional evidence, we note that the additional evidence sought to be introduced goes to the legal status of the Nairobi City Development Policy, 2021. That policy was first introduced by the trial court Judge in his determination of the dispute before him. It is not contested that the parties before the trial court were not afforded an opportunity to interrogate the policy, ascertain its authenticity, or present evidence of how it was enacted by the relevant organs of Nairobi City County. Although the Court of Appeal acknowledged this fact, it nevertheless held that the trial court was entitled to rely on it. The evidence, it is now contended, has the potential to fundamentally alter the status of and the applicability of the policy and, in particular, raises the critical question of whether the policy had been duly passed by the County Assembly at the time the trial court relied upon it.*** ***xi. While the latter point may be valid, we must follow our previous decisions and ask the question whether the additional evidence sought to be adduced could not have been obtained with reasonable diligence for use at the trial court, or could not otherwise have been produced earlier, including at the Court of Appeal. This court, in this consideration, has also to determine whether the evidence has always been available and could have easily been obtained- See***[***Freedom Limited v Mbarak***](https://kenyalaw.org/akn/ke/judgment/kesc/2024/76)***(Petition (Application) E009 of 2024) [2024] KESC 76 (KLR).”*** 1. *In a nutshell,* I beg to state that the Applicant herein has neither met nor established the set conditions to warrant the granting of leave to tender or adduce additional evidence. In addition, the Applicant has not demonstrated the efforts that were made before the trial at the Lower Court. 2. Next is the issue as to whether the Respondents shall suffer prejudice or injustice, if the subject application is allowed. I wish to state that the documents sought to be tendered cannot merely be brought before this court on the basis of an affidavit, either in the manner sought or at all. For good measure, the documents under reference may require interrogation to ascertain whether same are valid and lawful. This would mean that the makers of the documents under reference, would have to be called for purposes of cross examination. 3. Nevertheless, it is apparent from the face of the application that the Applicant herein merely seeks to bring the documents on board *vide* a supplementary record of appeal, without proposing on how the veracity of the documents, would be authenticated. It suffices to state that cross examination is a key component of the right to fair hearing and fair trial. A party cannot be deprived of this critical right, yet, that is what the Applicant is endeavoring to do. 4. Other than the foregoing, I have noted that the documents which the Applicant seeks to introduce are public documents and thus same requires to be certified in line with the provision of **Section 80 of the Evidence Act Chapter 80 Laws of Kenya.** However, the documents beforehand have not been certified. To this end, it means that the named documents would not even meet the threshold for admissibility. 5. In the case of **Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR),** the Supreme Court illuminated the threshold for admissibility of public documents. The apex court stated thus: ***“The***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***provides for admissibility of evidence with section 80 setting out the manner in which public documents may be produced in court. It states:*** ***Certified copies of public documents.*** ***1. Every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.*** ***2. Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.*** ***82. This procedure ensures the preservation of the authenticity and integrity of the public documents filed and produced in court. Further, section 81 of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***allows the production of certified copies of documents in proof of the contents of the documents or parts of the documents of which they purport to be copies.*** ***83.From the foregoing provisions, public documents can only be produced in court as evidence through the procedure set out above. They can be produced as evidence in court by way of producing the original document or a copy that is duly certified. The documents having been adduced in evidence without adhering to these rather straightforward provisions, were thereby out rightly rendered inadmissible.”*** 1. It is the duty of this court to ensure that the right to fair hearing and fair trial are respected. Where an action or omission is likely to affect the right to fair hearing, then the court must call out such an act and thereafter rise to the occasion to avert the breach or threatened breach of the right to fair hearing. In addition, it suffices to state that a breach to the right to fair hearing culminates into a miscarriage of justice or works injustice. 2. The significance of the right to fair hearing has been the subject of various deliberations by the apex court. In the case of **Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR),** the Court highlighted the tenor of the said right in the manner following**:** ***“The right to a fair hearing is provided for in the Constitution as follows: “Article 50(1) of the Constitution provides that:*** ***Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”*** ***Article 25 of the Constitution stipulates that: “Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited –*** ***(a)freedom from torture and cruel, inhuman, or degrading treatment or punishment.*** ***(b)freedom from slavery or servitude.*** ***(c)the right to a fair trial*** ***;(d)the right to an order of habeas corpus.” [emphasis added]*** ***68.In***[***Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others,***](https://kenyalaw.org/akn/ke/judgment/kesc/2014/11)***SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR (Njoki Ndungu, SCJ, Concurring), this court made the following finding concerning the right to a fair trial under article 50(1) and 50(2):“[255] Article 50(1) refers to the right to a fair hearing for all persons, while article 50(2) accords all accused persons the right to a fair trial.*** ***Article 25(c) lists the right to a fair trial as a non-derogable fundamental right and freedom that may not be limited. Often the terms ‘fair hearing’ and ‘fair trial’ are used interchangeably, sometimes to define the same concept, and other times to connote a minor difference. Although the right to a fair trial is encompassed in the right to a fair hearing in our Constitution, a literal construction of these two provisions may be misconstrued in some quarters to mean that article 50(1) deals with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) is limited to accused persons thereby arguing that the protection of such right only relates to criminal matters. This is not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Bill of Rights, which calls for an expansive and inclusive construction to give a right its full effect…[257] Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled.…*** ***[261] It is important to restate that a literal reading of the provisions of the Constitution show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.” [See Steel and Morris v. United Kingdom, [2005] ECHR 103, paragraph 59].”*** **Conclusion:** 1. It is the Applicant herein who sought to produce additional evidence. It was therefore incumbent upon the Applicant to place before the court plausible reasons or explanations, if any, why the documents under reference could not be obtained at the time of the trial. The Applicant was obligated to be honest, candid and above board. 1. Additionally, the Applicant herein was also obligated to demonstrate that the application was being made in good faith. Instructively, the Applicant was required to show that the documents were not intended to pull the rug from the feet of the adverse party. 2. However, in respect of the instant matter, the applicants did not meet/satisfy the threshold. On the contrary, what came to light is that the Applicant was becoming wiser after the act and was desirous to use the judgment of the trial court as a basis for undertaking panel beating. Such conduct cannot be sanctioned, or countenanced by the court. 3. Similarly, it is imperative to state that each party has only one bite on the cherry of justice. A second bite, by way of additional evidence, can only be allowed in limited and exceptional circumstances. Such circumstances, were not established in respect of the instant matter. 4. Additionally, it is not lost on me that the introduction of the additional documents, at this stage of the appeal, will subject the Respondents to grave prejudice and injustice. Suffice it to state that the court is enjoined to avert such kind of injustice. Simply put, this Court is under an obligation to ensure the protection of the Parties rights to equal treatment; equal protection; and equal benefit under the Law in terms of **Article 27 [1] and [2] of the Constitution, 2010.** **Final orders:** 1. Flowing from the foregoing, I encounter no difficulty in finding and holding that the subject application, is not only misconceived, but constitutes an abuse of the due process. 2. Consequently, and in the premises, the final orders are: 3. ***The Application dated 19.05. 2026; be and is hereby Dismissed.*** 4. ***Costs of the application be and are hereby awarded to the respondents.*** 5. ***Costs in terms of clause [ii] above shall be agreed upon and in default, be taxed in the usual manner.*** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO ON 11TH JUNE, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo /Mukami Ms. Bett holding brief for Mr. Kiogora Arithi for the Appellant/Applicant Ms. Gikundi for the 1st and 2nd Respondents. N/A for the 3rd Respondent.