https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1268

Vivo Auto Spares Limited v Mueke & another (As Administrators of the Estate of Simeon Mueke Maingi (Deceased)) & 2 others (Civil Appeal (Application) 87 of 2020) [2026] KECA 1268 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1268 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) 87 of 2020 W Karanja, AO Muchelule & WK Korir, JJA July 3, 2026 Between Vivo Auto Spares Limited Applicant and Wayua Mueke & Regina Kamene Karimi (As Administrators of the Estate of Simeon Mueke Maingi (Deceased)) 1st Respondent Sabethi Kanungui, Mulwa Willy Mutisya Mulwa & Simon Makau Muwa (As Administrators of the Estate of Stephen Mulwa Ilivi) 2nd Respondent Land Registrar, Machakos District 3rd Respondent (Being an application seeking to take and admit new and additional evidence against the ruling and order of the Environment and Land Court at Machakos (Angote, J.) dated 27th January 2017 in ELC Case No. 301 of 2009) Ruling 1.The applicant, Cyrus Kanyi, moved the Court by a Notice of Motion dated 7th March 2023, brought under sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 29(2) (sic) of the Court of Appeal Rules. The relevant rule is 31(1)b Court of Appeal Rules seeking leave to adduce additional evidence in the appeal. The proposed evidence, annexed to his supporting affidavit, comprises: a forensic document examination report dated 4th November 2020; an exhibit memo dated 27th October 2022 containing evidence allegedly presented but not considered by the superior court; and an application dated 24th November 2022 filed by Jackson Kimeu Kakonzi, which remains pending before the superior court. The applicant contends that the additional evidence is necessary for the just determination of the issues arising in the appeal. 2.The 1st respondent opposes the application through a replying affidavit sworn by Wayua Mueke, one of the administrators of the estate of the late Simeon Mueke Maingi. The 1st respondent avers that the appeal arises from a ruling of the Environment and Land Court (ELC) (Angote, J.) on an application dated 30th May 2014, in which the ELC directed that viva voce evidence be taken to ascertain whether the parties had entered into a valid agreement in Machakos ELC Case No. 301 of 2009. 3.According to the 1st respondent, the applicant participated in the Machakos suit as an interested party, claiming that she had intended to purchase one of the suit properties and had made part payment to the late Stephen Mulwa Ilivi, the 2nd respondent. The 1st respondent maintains that no consent of the Land Control Board was obtained in respect of the alleged transaction. It is further averred that the late Simeon Mueke Maingi obtained injunctive orders on the ground that the purported sale to the applicant was fraudulent, as he jointly owned L.R. Mavoko Town Block 2/110 with the 2nd respondent. 4.The 1st respondent further states that all parties were afforded an opportunity to present evidence before the ELC. Although the applicant participated in the proceedings and cross- examined the 1st and 2nd respondents, he did not call any witness or adduce evidence in support of, or opposition to, the application before the ELC. The 1st respondent contends that there was nothing preventing the applicant or the 2nd respondent from calling Mr. R.M. Matata, an advocate whose name featured prominently throughout the proceedings, as a witness. 5.It is further averred that the applicant subsequently sought review before the ELC, during which Mr. Matata's evidence was considered and rejected in relation to the allegations of fraud advanced by the applicant. The superior court dismissed the review application in a ruling delivered on 31st January 2021, and no appeal has been lodged against that decision. 6.The 1st respondent, therefore, contends that the evidence sought to be introduced is neither new nor was unavailable at the time of the proceedings before the ELC. According to the 1st respondent, the evidence could have been obtained and produced through the exercise of reasonable diligence, and the applicant has not provided any satisfactory explanation for her failure to tender it during the hearing before the superior court. 7.The background to the application is that, in Machakos ELC No. 301 of 2009, the late Simon Mueke Maingi, by a motion dated 30th May 2014, sought judgment in terms of a consent letter dated 12th May 2014. It was contended that the 1st respondent and the 2nd respondent had reached a compromise regarding the suit properties and that the 2nd respondent held those properties in trust for the 1st respondent. The 2nd respondent opposed the motion, asserting that the consent had been entered into by the 1st respondent's advocate and his former advocate, R. M. Matata, without his knowledge or instructions. The applicant herein also opposed the motion, contending that he had purchased Mavoko Town Block 2/110 from the 2nd respondent and was not privy to any alleged trust arrangement between the parties. In a ruling delivered on 27th January 2017, the ELC allowed the motion and entered judgment in terms of the consent. The applicant was directed to seek a refund of the purchase price from the 2nd respondent. 8.Thereafter, by a motion dated 19th March 2018, the 2nd respondent sought review of the ruling of 27th January 2017. The application was premised on the ground that the late Jackson Kimeu Kakonzi, an advocate from the firm of R. M. Matata Advocates who had allegedly been struck off the Roll of Advocates, lacked the capacity to act for the 2nd respondent and to execute the consent letter on his behalf. The 2nd respondent further contended that Mr. Matata had, through an affidavit, denied receiving instructions to act for him and had also disowned the signatures appearing on both the notice of change of advocates and the consent letter. In a ruling delivered on 31st January 2020, Angote, J. dismissed the review application and held that the record demonstrated that Mr. Matata had at all material times been on record for the 2nd respondent. The court further found that the allegations concerning the notice of change of advocates and the consent letter, including the claim that they had been signed by Mr. Kakonzi, who was allegedly unqualified to practice as an advocate, ought to have been raised in opposition to the motion dated 30th May 2014. The court concluded that those matters did not constitute the discovery of new and important evidence capable of warranting a review of its earlier decision. 9.We heard the application on 17th December 2025. In support of the application, learned counsel for the applicant, Ms. Mwirichia, relied on written submissions. Learned counsel for the 1st respondent, Mr. Muindi, equally relied on his replying affidavit and written submissions thereof. Learned counsel for the 2nd respondent, Mr. Kimiti, holding brief for Mr. Makambo, was not opposed to the motion. 10.It was submitted for the applicant that the motion met the threshold for admission of additional evidence under section 78 of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, and the principles in Ladd -vs- Marshall [1954] 1 WLR 1489 (CA) It was contended that the proposed evidence, namely the forensic document examiner's report and Jackson Kimeu Kakonzi's application dated 24th November 2022, was material to the appeal and would have an important bearing on the validity of the disputed consent upon which the ELCs ruling of 27th January 2017 was founded. It was argued that the court failed to admit or properly consider crucial evidence, including the testimony of advocate R. M. Matata denying that he or his firm had participated in or authorized the consent, yet nonetheless relied on that consent in determining the matter. It was maintained that the additional evidence was necessary to enable the Court to properly determine the appeal, that its admission was required in the interests of justice, and that sufficient cause had been demonstrated to warrant its reception. 11.In opposing the motion, the 1st respondent relied on John Waguru Ikiki & Others -vs- Lee Gachuiga Muthoga, Civil Appeal No. 196 of 2009 (2011) KLR, and submitted that the applicant had failed to provide any satisfactory explanation for not producing the proposed evidence before the ELC. The 1st respondent argued that the application was merely an attempt to fill gaps in the applicant's case by introducing a police statement obtained during the pendency of the appeal. It was further submitted that the police ultimately declined to pursue the allegations after being informed that the dispute had already been heard and determined by the court. The 1st respondent also contended that no explanation had been offered as to why Mr. R.M. Matata and Mr. Jackson Kakonzi were not called as witnesses by either the applicant or the 2nd respondent during the viva voce hearing conducted on 16th March 2015. Additionally, it was submitted that Mr. Matata was subsequently summoned by the superior court during the hearing of the review application, where he gave substantially the same evidence now sought to be relied upon. That evidence was considered and rejected by the court, and no appeal was lodged against that decision. 12.We have considered the application, the affidavits and the rival submissions. Under Rule 31(1)(b) of the Court of Appeal Rules, the Court has power, in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court. In the case of Mahamud - vs- Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) (28 September 2018) (Ruling), the Supreme Court of Kenya laid down the governing principles on allowing additional evidence in appellate courts in Kenya. It is necessary to reproduce at length the relevant passages from the decision of the Supreme Court:“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;b.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;c.The evidence must be credible in the sense that it is capable of belief;d.The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;e.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;f.Where the additional evidence discloses a strong prima facie case of willful deception of the Court;g.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.h.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.i.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. 80.We must stress here that this Court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.” 13.In the same vein, see decisions of this Court in Tarmohamed & Another -vs- Lakhani & Company [1958] EA 567; Attorney General -vs- Torino Enterprises Limited [2019] eKLR; Safe Cargo Limited -vs- Embakasi Properties Limited & 2 Others [2019] eKLR; and Republic -vs- Ali Babitu Kololo [2017] eKLR. We bear those principles in mind. 14.We have considered the nature of the appeal, in which the applicant, supported by the 2nd respondent, contends that the learned Judge erred in adopting the impugned consent despite objections founded on allegations of fraud, collusion, misrepresentation, and want of authority, and further that the consent improperly compromised the suit to the exclusion of the applicant. The question before us, however, is not the merit of those grounds of appeal, but whether the proposed additional evidence satisfies the strict legal threshold for admission at this stage. 15.The principles enunciated in the above-cited cases indicate that, additional evidence is admitted sparingly, only where it is shown to be unavailable despite due diligence, relevant and necessary to determine the appeal, and not merely intended to fill gaps or strengthen a party’s case. 16.The proposed evidence, the forensic document examiner’s report, and the application dated 24th November 2022, relate to the validity of the impugned consent and the authority of counsel. However, these issues were central to the proceedings before the trial court and were within the knowledge of the parties. The applicant has not explained why the evidence could not, with reasonable diligence, have been obtained and presented at that stage, especially given that parties were afforded an opportunity to adduce viva voce evidence but failed to call key witnesses such as Mr. R.M. Matata or Mr. Jackson Kimeu Kakonzi. 17.Further, the record shows that substantially similar allegations regarding the consent and authority of counsel were raised and determined in the subsequent review proceedings before the trial court, where they were rejected. The applicant now seeks to reintroduce those issues through the mechanism of additional evidence, which is impermissible in appellate proceedings. 18.As regards the forensic report, if it formed part of the record before the trial court, it is not “additional evidence” within the meaning of Rule 31; if it did not, no satisfactory explanation has been given for its omission at trial. Either way, the threshold for admission is not met. 19.In any event, the appeal can be fully determined on the existing record, which contains the pleadings, proceedings, and rulings necessary to resolve whether the trial court properly adopted the consent in light of the objections raised. The proposed evidence is, therefore, not necessary for the determination of the appeal but is aimed at bolstering the applicant’s case on appeal. 20.Guided by the Supreme Court in Mahamud -vs- Mohamad & 3 Others (supra) additional evidence cannot be used to patch up weak points or reopen issues already canvassed or capable of determination on the record. The present application falls squarely within that prohibition. 21.Accordingly, the Notice of Motion dated 7th March 2023 fails to meet the legal threshold for admission of additional evidence and is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NAIROBI, THIS 3RD DAY OF JULY 2026.W. KARANJA....................................JUDGE OF APPEALA.O. MUCHELULE....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar.