https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1332

Wachira & another (administrators of the Estate of Julius Wachira - Deceased) v Muburi (legal representative and administrator of the Estate of Mathew Muburi Muya - Deceased) (Civil Appeal (Application) E124 of 2021) [2026] KECA 1332 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1332 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E124 of 2021 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Njoroge F. A. Wachira 1st Applicant Alois Mwangi Wachira 2nd Applicant administrators of the Estate of Julius Wachira - Deceased and Lucy Watiri Muburi Respondent legal representative and administrator of the Estate of Mathew Muburi Muya - Deceased (An application to adduce additional evidence in the appeal against the Judgment and Decree of the Environment and Land Court of Kenya at Muranga (J.G. Kemei, J.) delivered on 27th September, 2018 in ELC Case No. 159 of 2014 Environment and Land Case 490 of 2017 ) Ruling 1.The applicants, vide the motion dated 25th March, 2024 expressed to have been brought under sections 3A and 3B of the Appellate Jurisdiction Act, s 78(1)(d) of the Civil Procedure Act, rule 31(1)(b) of the Court of Appeal Rules, 2022 and article 50 of the Constitution of Kenya, seek to be allowed to adduce additional evidence at the hearing of the appeal in the form of six affidavits, and that the same be deemed to be part of the record of appeal. 2.The affidavits are annexed and are sworn by the following persons:a.Hannah Waithira Hamisi.b.Sebastian Gathitu Muburi.c.Jane Wambui Gachinga.d.Zaweria Gathoni Wanderi.e.Mary Waiyego Mwangi.f.John Kanja Njema. 3.The application is premised on grounds on the face of the application and supported by the affidavit sworn by Njoroge F A Wachira. The applicants’ position is that the additional evidence is necessary to remove the vagueness or doubt over the case as regards the lineage of Mwangi Mutambuki; that clearing the doubt over the lineage is necessary to determine whether the suit land is ancestral land or not; and that therefore it has a direct bearing on the main issue in the suit. Further, the evidence is directly relevant to the matter before this court, and it is in the interest of justice that the same be admitted as part of the appellants’ evidence. They contend that the evidence is credible and capable of belief and that if admitted, it will have impact on the determination by this court; that the evidence is not so voluminous that it would make it difficult or impossible for the respondent to respond effectively; neither is it prejudicial to any party; is that it will be in the interest of justice as it is necessary and crucial in making of a proper judicial finding. 4.The application is opposed. Lucy Watiri Muburi, vide the replying affidavit dated 4th April, 2024 deposes that the application is incompetent for reason no cogent reasons have been demonstrated to show that the additional evidence sought to be adduced was not available to the applicants at the time of trial or through exercise of due diligence; nor have they proved that the evidence is relevant, credible and could have had an impact on the judgment had been tendered at the trial, neither is there clarity of the impact it could have on the decision of this court if it was allowed; and; that the vagueness the applicants intend to remove or clarify from the judgment has not been demonstrated and thus the process is an academic exercise if it was allowed. 5.The deponent avers that she stands to suffer prejudice if the application is allowed, as she has already transferred the suit property to her name and resides there, and thus, she will be denied the fruits of the judgment. Further, the deponents of the affidavits intended to be admitted in evidence are villagers who were there even when the case was going on before the trial court and yet no explanations have been given why they could not have been called earlier. 6.The application was heard through this court’s virtual platform on the 13th May, 2025. Present for the applicants was Ms. Wangui, learned counsel who held brief for Mr. Kiogora; while Mr. Kinuthia Wanyambura learned counsel was present for the respondent. 7.Ms. Wangui relied on the applicants’ submissions filed one day to the hearing of the application. In brief highlights, counsel urged that this court has the power to exercise discretion to allow the application under rule 31 (1)(b) of the Rules, and section 78 of the Civil Procedure Act. She urged that there were six affidavits from six villagers from the same village where the parties in the suit come from. She urged that they were not within reach of the applicants’ counsel when the suit was filed. She stated that the proceedings in the case began in 1979, but denied that the application was an attempt to bring in a new case. 8.In reliance to the guiding principles on admission of additional evidence in the appellate court as set in the decision of the Supreme Court in Hon. Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamed and 3 Others [2018] eKLR, counsel for the applicants urged that the applicants had substantially satisfied the principles in the Supreme Court decision of Hon. Mohamed Abdi Mahamud, by showing that they were unaware of their lineage until after the decision appealed from was delivered, and after the relatives who lived far away came forward, upon learning of their imminent eviction from the suit land; that the additional evidence sought to be adduced will help the court make a determination of issues of lineage, number of sons the family patriarch had and whether the suit land was ancestral land. 9.Mr. Wanyambura for the respondent, relying on the case of Nayan Mansukhlal Salvavs hanikasa Nayan Sulva [2019] eKLR, which cited this court’s judgment in the case of Tarmohamed & Another vs. Lakhani & Co. [1958] EA 567, urged that the applicants had not satisfied the requisite conditions for the receipt of additional evidence, and urged us to dismiss the application. He urged that the applicants were seeking to bring new evidence, including that of Surveyors and villagers, who were available at the time of trial, without any explanation as to why they could not have been called earlier. He urged that the applicants had made four applications between 2018 and 2020 before the ELC, all of which were declined; that the application was a gross abuse of the court process and brought in bad faith. He urged that the application before this court was made three years after the appeal was filed; that the case has been in court since 1979; that the same was an afterthought and should be dismissed. 10.We have considered the application, submissions by the parties, cases relied on, and the affidavits sworn by both sides. The issue for determination is whether the applicants have satisfied the requisite conditions for admission of additional evidence by the appellate court. 11.This court has the power to take additional evidence under rule 31 (1) (b) of the Court of Appeal Rules 2022. It provides;“ 31.(1)On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power—(b)in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court.” 13.The Supreme Court case cited by both parties, Hon. Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR, breaks down the threshold the party seeking to adduce additional evidence should satisfy 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 willful 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.” 14.The issue is whether the applicants have satisfied the threshold as set in the Rules as afore mentioned, and the Supreme Court decision of Hon. Mohamed Abdi Mahamud, (supra). 15.The additional evidence sought to be adduced are witness statements from six persons indicated to be three relatives of the applicants and three neighbours. The applicants needed to give reasonable explanation why they did not avail these witnesses from 1979 when the very first suit in this matter was filed; or soon thereafter. We have considered the grounds upon which the application is premised. The applicants state that the evidence of the six witnesses was necessary and relevant as it will remove vagueness as to the lineage of the Mwangi Mutambuki, their patriarch, and give light as to whether the suit land was ancestral land; that the evidence is credible and capable of belief and would impact the outcome of the case; that the evidence is not voluminous and will not prejudice the respondent, and is in the interest of justice should it be admitted. He states that the witnesses could not have been availed at the time of trial despite reasonable diligence. 16.The applicants needed to give reasonable explanations for each of the facts they state in support of their application. They needed to explain why the evidence they seek to adduce is credible and capable of belief; how it will impact the case and why it is in the interest of justice for their evidence to be received. Apart from making bare statements, nothing was demonstrated. 17.The applicants state that, despite reasonable diligence, they were unable to avail the witnesses. There is no disclosure made, first of the due diligence exercised to try and get the witnesses, and secondly, why the due diligence failed. What the applicants needed to explain in addition is whether the evidence was within their knowledge or why they could not have obtained it by the time the suit was heard. No explanation along these lines was made. Furthermore, these witnesses are relatives and neighbours of the applicants, according to the grounds on the face of the application. It is difficult to understand, without any explanation, why the applicants could not have availed them earlier. 18.Furthermore, the applicants have not explained the inordinate delay in bringing this application; and even if they could have been able to do so, they gave no cogent or reasonable explanation why they only recently came to know that there are six relatives and neighbours who had important evidence to give in the case. 19.The respondent accuses the applicants of seeking to bring a new case and new evidence to try and delay the outcome of the appeal. Given the vague and opaque explanations offered by the applicants in support of this application, we find that the applicants did not satisfy the requisite threshold to justify the success of this application. 20.The result is that the application dated 25th March, 2024 lacks merit and is dismissed with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026S. ole KANTAI......................................JUDGE OF APPEALJ. LESIIT......................................JUDGE OF APPEALALI – ARONI......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR