https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3884

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC CIVIL APPEAL NO. E229 OF 2025** **MARY WANJIKU** **APPELLANT** **VERSUS** **JOHN KURIA NJOROGE AND JOSPHAT KURIA NJOROGE** (Suing as the Administrators and Legal Representatives of the Estate of **MONICA WANJIRU KAMARA** (Deceased)) **RESPONDENTS** **RULING** 1. Before the Court for determination is the Appellant/Applicant’s Notice of Motion dated 21st May 2026, brought under Article 159(2)(d) of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Section 146(4) of the Evidence Act, and Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules. The application is expressed to be supported by the grounds set out on its face and by the affidavit of Mary Wanjiku sworn on 21st May 2026. 2. The Applicant seeks the following orders: 3. Spent… 4. That the ruling and judgment slated to be delivered on 22nd May 2026 be deferred pending the hearing and determination of the application. 5. That this Honourable Court takes additional evidence identified through the Applicant’s supporting affidavit, or directs that additional evidence be taken by a Deputy Registrar or in any other manner as the Court may direct. 6. That the Applicant be allowed to put in a further list of documents in support of the further evidence to be taken. 7. That the costs of the application be provided for. 8. Prayer (b) has been overtaken by events, this Court having stayed the delivery of its reserved judgment in order to hear and determine the application. What falls for substantive determination are prayers (c) and (d), namely whether the Applicant ought to be granted leave to adduce additional evidence at this appellate stage and to file a further list of documents in support thereof. 9. The Applicant’s case, as set out in the grounds on the face of the motion and in her supporting affidavit, is in summary as follows. She deposes that she filed this appeal fully convinced that she was the lawful owner of Plot Number G301B, also known as Land Reference Number Nairobi/Block 136/3516, having purchased the same after following the due process available at the time. She states that the gist of the dispute is the ownership of Land Reference Number Nairobi/Block 136/3516, formerly G301B, which the trial court declared to belong to the Respondents. 10. The Applicant further deposes that she has since obtained records from the Ministry of Lands at Ardhi House and from the Survey of Kenya which, she contends, establish that Plot Number F317B (Land Reference Number 136/2564), allocated to the Respondents’ late mother, is separate and distinct from Plot Number G301B (Land Reference Number 136/3516), which is registered in her own name. She relies on copies of the master lists, survey coordinates and survey maps annexed as exhibits “MW1a” to “MW3b”, which she says show that the two parcels bear different survey coordinates, appear on different folios and registers, and do not overlap. On that basis she asserts that the documents relied on by the Respondents are forgeries and that the judgment of the trial court was obtained through flawed, illegal and fraudulent means. 11. The Applicant contends that this evidence was not within her knowledge or possession during the trial and only came into her possession on 20th May 2026; that it is credible, weighty and directly relevant to the controversy; that it would influence or impact the outcome of the appeal; and that she is not seeking to patch up her case or to make a fresh case that was not canvassed before the trial court. She acknowledges, however, that the documents are yet to be certified as true copies, and prays that officers from Ardhi House and the Survey of Kenya be summoned to shed light on the records and to confirm the annextures as true copies of their records. 12. The application is opposed. Through their replying affidavit sworn on 3rd June 2026, the Respondents, John Kuria Njoroge and Josphat Kuria Njoroge suing as the administrators and legal representatives of the estate of Monica Wanjiru Kamara, deceased, depose that the application does not meet the criteria for the re-opening of a concluded matter at the appeal stage for the production of additional documents. 13. The Respondents further depose that the documents the Applicant seeks to produce are not documents that could not have been availed at the time of hearing and during the pre-trial stage, unless the same were manufactured and prepared after the conclusion of the trial, and that some of them are illegible. They state that during the trial the surveyor who allocated the plots at Embakasi Ranching, one John Muhia Kanotha, testified that the plot in issue corresponds to Nairobi Block 105/3516 and not Nairobi Block 136/3516; that Block 105 and Block 136 are two distinct blocks; and that the coincidence of the plot number 3516 ought not to be used to deny them their lawful inheritance. They maintain that to call a further witness on the question of allocation and survey would only occasion confusion, that the judgment of the lower court was cogent and reached the correct findings, and that this Court should proceed to deliver its judgment without entertaining what they term side-shows. 14. The application was canvassed by way of a plenary hearing on 11th June 2026, at which learned counsel Ms. Wahito appeared and made oral submissions on behalf of the Appellant/Applicant, while learned counsel Mr. Mwangi made oral submissions on behalf of the Respondents. Ms. Wahito submitted that the additional evidence sought to be adduced would shed light on the existence of the two plots, and that its admission would not amount to a patching up of the Appellant’s case. 15. In opposition, Mr. Mwangi submitted that the two plots are distinct; that the Applicant is in truth seeking to patch up her case; and that the application is no more than a delaying tactic. 16. I have considered the application, the supporting and replying affidavits, the annexed documents on record and the oral submissions of learned counsel canvassed at the hearing of 11th June 2026. The single issue that arises for determination is whether the Applicant has made out a case for leave to adduce additional evidence at this appellate stage. 17. This is a first appeal from the judgment of the Senior Principal Magistrate. The power of an appellate court to receive additional evidence is conferred by Section 78(1)(b) of the Civil Procedure Act, which empowers the appellate court to take additional evidence or to require such evidence to be taken, and is regulated by Order 42 Rule 27 of the Civil Procedure Rules, 2010. While the Applicant has invoked Section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules, the apposite provision governing the reception of additional evidence on a first appeal is Order 42 Rule 27, and I approach the application on that footing. 18. Under Order 42 Rule 27, the parties to an appeal are not entitled, as of right, to adduce additional evidence, whether oral or documentary, in the appellate court. Such evidence may be admitted only where the trial court has refused to admit evidence which ought to have been admitted, or where the appellate court requires the document to be produced or the witness to be examined to enable it to pronounce judgment, or for any other substantial cause; and where additional evidence is admitted, the court is enjoined to record its reasons for so doing. 19. The principles guiding the exercise of this discretion are well settled. In **Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 4 others [2018] eKLR,** the Supreme Court, adopting the classic conditions in **Ladd v Marshall [1954] 1 WLR 1489** and the principles in **Wanje v Saikwa (No. 2) [1984] KLR 275**, restated the considerations that guide a court faced with such an application. They include that the additional evidence must be directly relevant to the matter before the court and in the interest of justice; that it must be such that, if adduced, it would have influenced or impacted upon the result of the verdict, though it need not be decisive; that it is shown the evidence could not have been obtained with reasonable diligence for use at the trial and was not within the knowledge of, or could not have been produced by, the party at the time of trial; that it is credible and capable of belief; that it is not so voluminous as to make it difficult for the court to consider; that no party would suffer undue prejudice; and that the application is brought without undue delay. 20. These principles have since been reaffirmed at the apex level. In **Attorney General v Zinj Limited [2021] KESC 63 (KLR),** the Supreme Court, faced with an application to adduce additional evidence in a dispute concerning the deprivation of land, applied the very conditions it had laid down in **Mohamed Abdi Mahamud (supra),** framing the inquiry as whether the proposed evidence would run afoul of those established principles. Significantly, the additional evidence there in issue was survey material tendered to establish the extent of the encroachment upon the disputed land and to remove any vagueness or doubt over the area affected and the compensation payable evidence, that is, directed at the very identity and measure of the land in contest. The Court reaffirmed that the discretion to receive additional evidence on a first or further appeal is to be exercised sparingly, with abundant caution, and on a case-by-case basis, and that it is not a vehicle by which a party may construct or perfect on appeal a case which it could, with reasonable diligence, have placed before the trial court. I take the principles in **Mohamed Abdi Mahamud (Supra) and Zinj (Supra)** as the governing and most authoritative statement of the law I must apply, and I approach this application in their light. 21. The threefold conditions in **Ladd v Marshall (Supra)** are conjunctive. The party seeking to adduce additional evidence must demonstrate, first, that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that the evidence would probably have an important influence on the result of the case, though it need not be decisive; and thirdly, that the evidence is apparently credible, though it need not be incontrovertible. A failure on any one of these limbs is fatal to the application. 22. I begin with the requirement of reasonable diligence, which in my view is decisive of this application. The documents the Applicant seeks to introduce the master lists, survey coordinates and survey maps held at the Ministry of Lands and the Survey of Kenya are, on the Applicant’s own showing, public records generated when the titling programme was rolled out in the year 2016. They therefore predate not only the impugned judgment of 3rd October 2025 but the trial itself. The Applicant does not depose that these records were unavailable to her, concealed from her, or incapable of retrieval before or during the trial. Her case rises no higher than that she obtained them on 20th May 2026. That averment speaks to when she chose to procure the records, not to any impediment that prevented her from obtaining them earlier with reasonable diligence. Having filed this appeal fully convinced that she was the registered owner of the disputed parcel, the Applicant had every reason and opportunity to obtain these public records in good time. No explanation has been offered for the failure to do so, and the first limb is accordingly not satisfied. 23. On the second limb, the records, if authentic, might have a bearing on the question whether the two parcels are distinct. Their probative value at this stage is, however, uncertain. By the Applicant’s own admission the documents are not certified true copies, and she seeks leave to summon officers from Ardhi House and the Survey of Kenya to authenticate them. The Court is thus invited not to receive a discrete and ready item of evidence, but to embark upon a fresh evidentiary inquiry. Moreover, the Respondents have demonstrated that the very question of plot and block identity was live at the trial, where the surveyor, John Muhia Kanotha, gave evidence touching on the correspondence between the plot and the relevant block. The material the Applicant now tenders is, in its nature, the very kind of survey evidence which, in **Zinj (supra),** the Supreme Court weighed against these conditions; but, unlike a discrete and authenticated record received to dispel a genuine doubt, it is uncertified and is directed at an issue that was squarely before the trial court and is already met by the surveyor’s evidence on record. The evidence the Applicant now proposes is, in substance, contrary survey evidence on an issue already canvassed before the trial court. I am not persuaded that the uncertified documents would probably have such an important influence on the result as to warrant the re-opening of the inquiry. 24. As to credibility, the documents are uncertified photocopies, contested by the Respondents as illegible and as possibly having been prepared after the conclusion of the trial. The Applicant herself concedes that they require certification. Uncertified and contested copies of public records are not, on their face, apparently credible in the sense required before a court will disturb a concluded proceeding. 25. I am also mindful of the principle of finality of litigation and of the timing of this application. The motion was filed on 21st May 2026, on the very eve of the judgment that had been reserved for delivery on 22nd May 2026, and after the appeal had been fully argued and reserved. To grant the application would be to defer a judgment that is ready, to re-open the evidentiary record, to require the summoning of officers from two separate State departments, and to permit the Applicant to mount, for the first time on appeal, a case of forgery and fraud which she did not present at the trial. That would occasion real prejudice to the Respondents, who would be called upon to meet allegations never tested before the trial court. 26. The Applicant protests that she is not seeking to patch up her case or to make a fresh one. Yet the substance of the application is to introduce registry and survey evidence in order to establish the distinctness of the parcels and the alleged forgery the very issues at the heart of the suit. An appeal is heard and determined on the record made before the trial court, save in the exceptional circumstances contemplated by Order 42 Rule 27. The trial court did not refuse to admit this evidence, for it was never tendered before it; nor does this Court require it in order to pronounce judgment, which it is in a position to deliver on the existing record. No substantial cause within the meaning of the rule has been demonstrated. 27. I am alive to the gravity of the Applicant’s allegations of fraud and forgery, which the Court does not take lightly. But the proper time and forum to plead and prove fraud was at the trial. The seriousness of the allegation cannot, of itself, supply the diligence that was wanting, nor can it convert uncertified and untested documents into admissible additional evidence on appeal. For the avoidance of doubt, nothing in this ruling determines the merits of the appeal or the truth of the parties’ competing claims, which remain for determination in the reserved judgment upon the record properly before the Court. 28. Taking all of the foregoing into account, I find that the Applicant has failed to satisfy the conjunctive conditions for the admission of additional evidence and, in particular, the requirement of reasonable diligence and has not established any substantial cause under Order 42 Rule 27 of the Civil Procedure Rules. The application is devoid of merit. 29. In the result, I make the following orders: 30. **The Notice of Motion dated 21st May 2026 is hereby dismissed.** 31. **Each party to meet on costs of the application.** It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY this 29th day of June 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Wahito for the Appellant/Applicant.** **Mr. Irungu Mwangi for the Respondents.** **Court Assistant; Joseph Letisia.**