https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7806

Mutua & another (Suing as legal representatives of the Estate of Isaac Mwikya Mwikali - Deceased) v Otieno & 2 others (Civil Appeal E348 of 2023) [2026] KEHC 7806 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7806 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E348 of 2023 MN Mwangi, J May 29, 2026 Between Christine Mwikali Mutua & Rael Wayua Mbatha (Suing As Legal Representatives Of The Estate Of Isaac Mwikya Mwikali - Deceased) Appellant and Joseph Otieno 1st Respondent Paul Mwangi Mwaura 2nd Respondent Stephen Kamau Ndungu 3rd Respondent Ruling 1.The appellants/applicants filed a Notice of Motion application dated 24th May 2024 pursuant to Sections 1A, 1B, 3A and 78(1)(d) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010. They seek orders to file additional documentary evidence being the Judgment from Kiambu Magistrate’s Court Criminal Case No. 301 of 2017, delivered on 8th March 2019 and motor vehicle records for motor vehicle Reg. No. KBN 858F. 2.The application is premised on an affidavit sworn on 24th May 2024 by Ms Rael Wayua Mbatha. She averred that she filed the suit in the lower Court, alongside Christine Mwikali Mutua on behalf of the Estate of Isaac Mwikya Mwikali, who died following a fatal road accident which was caused by motor vehicle Reg. No. KBN 858F. 3.The applicant deposed that they filed the suit in the Trial Court seeking compensation and the respondents herein, who were the Driver and owners of the said motor vehicle entered appearance and filed defence, although they did not participate in the trial. She stated that the Trial Court in the civil case, delivered Judgment on 25th August 2023, and exonerated the 2nd and 3rd respondents on liability, on account of there being no documentary evidence which connected them to the claim. 4.Ms Mbatha stated that in Criminal Case No. 301 of 2017 at Kiambu, the 2nd and 3rd respondents admitted to being the Driver and owner of the motor vehicle in issue, respectively. She averred that they (applicants) did not think that it would be an issue in the civil suit. She stated that the 3rd respondent indicated during the criminal case that he had not registered the motor vehicle in his name, which was confirmed in the NTSA copy of records. 5.The applicants pointed out that the Trial Court exonerated the 3rd respondent who was the insured of the case and contended that the intention under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, will be defeated as the insurance company will not settle the claim. The applicants averred that this Court has the powers to take additional evidence as it will have meaningful impact on the Appeal, as the documents they intend to rely on are pubic documents, which are viable, credible and reliable. The applicants contended that the proposed additional documents are not being introduced to fill in gaps, which shows that the respondents will not suffer any prejudice given that one of the prayers in their application is that they be allowed to file replying affidavit in response to the documents to be filed in the supplementary Record of Appeal. 6.The application was served upon the respondents as evidenced in the Affidavit of Service sworn on 15th October 2024 by Manyara Mainye Michael, but they did not file any response. Their non-response notwithstanding, this Court is however still called upon to consider the merits of the application. 7.The applicants filed submissions dated 21st April 2026 through the law firm of Oyugi & Company Advocates. Mr Manyara, learned Counsel for the applicants submitted that this Court has the power and discretion to grant the orders being sought herein. He relied on the conditions set out in the Supreme Court Case of Mahamud v Mohamad & 3 others [2018] eKLR. 8.He submitted that the application meets the criteria set out in the above case, since the application has been made in the interest of justice, it will have an impact on the final verdict, the additional evidence could not have been obtained with reasonable diligence, that the said evidence will help remove vagueness in the case, it is capable of belief, it is not voluminous, and the evidence is necessary. Counsel stated that the additional evidence is not intended to patch up the applicants’ weak points in their Appeal; and there is significance in adducing additional evidence in the Appeal. 9.Counsel relied on the cases of Commissioner v Income Tax v Total Kenya Limited [2021] KEHC 79545 KLR, Morintat v Nyamota [2026] KEHC 2752 [KLR], Kithaka v Republic [2026] KEHC 2992 (KLR) Kibos Sugar & Allied Industries Limited & another v Benson Ambuti Adega & 5 others [2019] KECA 332 (KLR) and Mahamud v Mohamud & 3 others [2018] KESC 62 (KLR), in support of his submissions. Analysis And Determination. 10.I have read the Notice of Motion application, the supporting affidavit and the submissions filed. The main issue for determination is whether this Court should allow the application and admit the proposed documents at this appellate stage. 11.Section 78 of the Act Civil Procedure Act, provides for the powers of an appellate Court. It states as follows-1.Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power –a.To determine a case finally;b.To frame issues and refer them to trial;c.To take additional evidence or to require the evidence to be taken;d.To order a new trial.2.Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearby as may be the same duties as are conferred and imposed by this Act on Courts of original jurisdiction in respect of suits instituted therein.” 12.The conditions set out under Order 42 Rule 27 of the Civil Procedure Rules, 2010, must however be met in order for an appellate Court to admit new evidence. The said provisions state thus-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; orb.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.” 13.This Court is guided by the guidelines established in the case of Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamud & 3 others (supra), which states as follows-i.The additional evidence must be directly relevant to the matter before the Court and be in the interest of justice;.ii.It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;iii.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;iv.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;v.The evidence must be credible in the sense that it is capable of belief;vi.The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;vii.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;viii.Where the additional evidence discloses a strong prima facie case of willful deception of the Court;ix.The Court must be satisfied that the additional evidence is not utilized for the purpose of removing the lacunae and filling gaps in evidence.x.The Court must find the further evidence needful;xi.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;xii.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.” 14.In the instant application, the applicant seeks to adduce additional evidence of the copy of records for motor Vehicle Reg. No. KBN 858F, as well as the Judgment delivered on 8th March 2019, in the criminal proceedings of Kiambu Criminal Case No. 301 of 2017. 15.Going through the guidelines set out in the case of Mohamud v Mohamad (supra), the copy of one of the documents sought to be relied on, shows that the motor vehicle in issue was registered in the name of Julius Mwaniki Muiruri, who was not a party to the civil case in the lower Court. That being the case, the said evidence is not directly relevant to the matter in issue, and it will not have an impact on the result of the verdict. 16.I however do agree with the applicants that the said document, is a public document, which could have been obtained upon payment of the search fees. In effect, that means that it could have been obtained with reasonable diligence, before the civil suit in the lower Court was instituted. This Court therefore finds that the copy of the said record sought be adduced in additional evidence, is not credible and/or relevant, given that it bears a different party’s name. It is thus needful to either of the parties herein. 17.With regard to the Judgment delivered by the Trial Court in the criminal case against the 1st respondent, the applicants herein argued that during the hearing of the prosecution’s case, the 2nd respondent who testified as PW4, stated that he was the Driver of the subject motor vehicle but on the date of the accident, he had given the 1st respondent the motor vehicle to drop passengers as he had lunch. The applicants also stated that the 3rd respondent (PW5), testified that he was the owner of the motor vehicle having bought it from Pinnacle Business School. That he presented an exhibit of the logbook and stated that he was in the process of registering it in his name. 18.Going by the guidelines set out in the case of Mohamud v Mohamad (supra), although this Court finds that the proposed additional evidence is directly relevant to the matter in issue, and it would have an impact on the verdict of the Appeal, the same could have been procured before the civil suit in the lower Court was filed, especially given that the Judgment for the criminal case in the lower Court was delivered on 8th March 2019, before the filing of the civil suit on 4th February 2020. 19.It is this Court’s considered view that the applicants seek to introduce additional evidence to patch up gaps in their case. 20.This Court therefore finds that the applicants have not made out a substantive case to make this Court to allow admission of additional evidence at the appellate stage. 21.The Notice of Motion dated 24th May 2024 is found to be without merits. It is hereby dismissed with no orders as to costs, as the respondents did not file any response to the application. It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 29TH DAY OF MAY, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-Mr. Manyara for the applicants/appellantsNo appearance for the respondentsMs Julia – Court Assistant.