1. The Deceased, Ashkin Ronald Evan ‘Alias Ron Ashkin’ died in Nairobi in March, 2026. He was an American citizen working in Kenya with DT Global, the 7 th Interested Party. A dispute concerning his burial arose between the Appellant and the 1 st Respondent, both of whom claimed to be his widows. The two could not agree on who should have his remains for burial and disposal. The Appellant wanted to repatriate the deceased’s body to Nigeria for burial while the 1 st Respondent and the 2 nd Respondents (the Deceased’s daughter) wanted to repatriate his remains to the United States for burial.
2. The 1 st and 2 nd Respondents brought a suit seeking a declaration that they were the only persons entitled to determine the burial and disposal of his remains. They also sought a declaration restraining the Appellant from removing or repatriating the body of the Deceased. The matter proceeded to a full trial, and the parties gave oral testimony before the Court.
3. The Trial Court delivered a judgment on 10 th June, 2026, in which it held in favour of the 1 st Respondent by finding that she is the valid spouse of the Deceased. Accordingly, the Court held that the 1 st and 2 nd Respondents are the only persons entitled to determine the burial and disposal of the deceased’s remains.
4. The Appellant was dissatisfied with the judgment and brought an appeal vide a Memorandum dated 11 th June, 2026.
5. This Court delivered a Judgment on 17 th July, 2026, in which it found in favour of the Appellant. The Court determined that neither the Appellant nor the 1 st Respondent was able to prove that their alleged marriages were recognized in Kenya, and consequently fell back on the conduct of the Deceased to determine who the Deceased regarded as close to him, and therefore the person with the right to bury him.
6. After consideration, the Court found, based on the conduct of the Deceased, that it is more likely than not that the Deceased regarded the Appellant as the person closest to him. It ordered that the body of the Deceased Ronald Evan Ashkin (alias Ron Ashkin) be released to the Appellant to inter the remains in Nigeria. It also found that the 1 st and 2 nd Respondents were at liberty to attend and participate in the burial in Nigeria.
7. During the hearing, the 1 st Respondent produced a marriage certificate to prove her claims that she had contracted a civil marriage with the Deceased on 25 th November, 1984. The marriage certificate did not have their signatures, i.e, the Deceased and the 1 st Respondent did not sign the marriage certificate. The Court held that the said marriage was not consistent with Section 35 of the Marriage Act , which requires that the marriage certificate must be signed by both parties. Consequently, the Court found that the said marriage could not be recognized in Kenya because it did not meet the requirements in Section 40 of the Marriage Act, 2014.
8. The 1 st Respondent was dissatisfied with the Judgment and brought the instant application dated 27 th July, 2026, seeking review of the said Judgment. She sought the following orders;
a) Spent.
b) Spent.
c) Spent.
d) That this Honourable Court be pleased to review its Judgment and Decree delivered on 17 th July, 2026 in Family Appeal No. E091 of 2026, on the ground of the discovery of new and important evidence-namely the official Register/Record Book of Marriages of Vigo County, State of Indiana which, after the exercise of due diligence, was not within the Applicant’s knowledge and could not be produced at the hearing of the appeal.
e) That upon such review, this Honourable Court be pleased to set aside or vary the said Judgment and Decree, and to substitute thereof a finding that the marriage of the 1 st Respondent and the Deceased is valid and recognized in Kenya and an order affirming the entitlement of the 1 st and 2 nd Respondents to the custody, burial, disposal of the remains of the Deceased, or to make such other orders as the Court may deem just.
9. The grounds of the application are enumerated on its face and supported by an affidavit sworn by the 1 st Respondent dated 31 st July, 2026. The 1 st Respondent claimed that since the delivery of the Judgment, she had discovered and retrieved new and important evidence, namely, a certified copy of the entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana, recording the marriage of the 1 st Respondent and the Deceased solemnized on 25 th November, 1984, which directly and conclusively establishes the existence, valid contracting, and registration of the said marriage.
10. She claimed that the said evidence, after the exercise of due diligence, was not within her knowledge or possession and could not be produced at the time the Judgment was delivered. She deponed that the primary record of the marriage is held in the archives of Vigo County and that its retrieval required an archival search in a foreign jurisdiction. She averred that, having only learnt of the death of the Deceased and having been in Kenya since 20 th March 2026 under acute time constraints, produced at the hearing the documents then available to her, namely the marriage certificate issued and filed by Vigo County.
11. She claimed that the new evidence is of such importance and relevance that, had it been before the Court, it would probably have altered the outcome, as it answers conclusively the very finding upon which the non-recognition of the 1 st Respondent’s marriage was founded.
12. The Appellant filed a replying affidavit dated 28 th July, 2026, in which she opposed the instant application. She averred that the purported ‘new and important evidence’ does not meet the strict statutory thresholds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. She deponed that the 1 st Respondent did not satisfy the statutory threshold of due diligence, arguing that she did not demonstrate that the alleged new evidence was not within her knowledge or could not have been produced at the time the decree was passed.
13. She stated that the remedy for review is not intended to afford a party an opportunity to patch up lacunae in their evidence or re-litigate a case that had already been fully heard and determined on merit. She averred that the Court properly scrutinized the document marked as a marriage certificate and noted the absence of required statutory signatures under Section 35 as read with Section 40 of the Marriage Act, 2014. She argued that a re-arguing of how a document ought to have been interpreted is a matter for appeal to the Court of Appeal, not an error subject to review.
14. The Application was heard on 31 st July, 2026, during which Advocates for the respective parties argued the application before this Court.
1 st Respondent Oral Submissions
15. The 1 st Respondent submitted that she has a new document, a certified copy of the entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana, indicating that her marriage with the Deceased was solemnized on 25 th November, 1984. She submitted that if the Court had the said document at the hearing, it would have upheld that she was married to the Deceased. She argued that according to the custom of Vigo County, State of Indiana, parties are not required to sign a marriage certificate but instead sign a register book. She submitted that the Court ought to take cognizance that different jurisdictions have different customs of marriage.
Appellant’s Oral Submissions
16. The Appellant submitted that an application for review on fresh evidence must be treated with caution. She argued that the new document presents the same document that the Court had on appeal. She also submitted that the new document is not evidence of marriage, arguing that the said document does not meet Section 35 of the Marriage Act , requiring signing by both parties. Lastly, she submitted that the 1 st Respondent has not satisfied the test of due diligence, arguing that she obtained the new document after losing at the appeal and that there was no difficulty in obtaining the said document earlier.
Analysis and Determination
17. Having carefully considered the application, the various affidavits, and submissions by the parties, I find that the only issue for determination is whether the application meets the threshold for review.
18. The law on review is set out in Section 80 of the Civil Procedure Act Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 .
19. Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
20. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1 (1) Any person considering himself aggrieved—
c. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
d. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which , after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
21. Courts have been consistent on the interpretation of the above provisions. In Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
22. The application is based on alleged discovery of new and important evidence. The new document has been described as a certified copy of an entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana. The Applicant (the 1 st Respondent) stated that, after exercise of due diligence, the said document was not in her knowledge or possession and she could not produce it at the time of the hearing. She argued that, had it been before the Court, it would probably have altered the outcome, as it conclusively answers the very finding on which her non-recognition of her marriage was founded.
23. This Court is being called upon to determine whether the document in question meets the threshold of “ new and important matter or evidence” to warrant the review of the said Judgment.
24. On this particular aspect, the Court of Appeal in Karanja v Murigi (Civil Appeal 68 of 2019) [2025] KECA 517 (KLR) held that an Applicant seeking review on grounds of discovery of ‘important matter or evidence,’ must demonstrate that the new evidence is material to the case and not merely confirmatory of what was already presented. The Court stated as follows;
“Under these provisions [ section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules], the court may review its orders where it is satisfied on either one of three grounds. First, that there is discovery of new and important evidence which was not available at the time of the hearing despite the exercise of due diligence. Such evidence must be credible, material to the case, and not merely confirmatory of what was already presented” .
25. Similarly, the Court in In re Estate of Richard Kiplangat Tanui (Deceased) [2020] KEHC 3726 (KLR) , observed that an applicant seeking review on grounds of discovery of new evidence should demonstrate that the new evidence would have an impact on the ruling or judgment in question. The Court observed as follows;
“Additionally, it has not been shown what impact the information would have on the delivered ruling ….. Before the trial that resulted to the orders being sought for review, the advocate exercised his due diligence and it is my opinion that the advocate not using the alleged new documents was well discussed by the client. I also agree with the Respondent that the Applicant has not proved what impact the alleged new information would have on the ruling” .
26. In addition, the Court in Wachira v Safaricom Company Limited (Civil Suit E005 of 2022) [2025] KEHC 4697 (KLR) restated the law governing the admission of new evidence during a review of a Judgment. It stated as follows;
“In Kenya’s legal system , the admission of new evidence during a review of a judgment is governed by specific legal principles long established in case law. It is trite law that this motion for it to succeed must be brought within the legal framework on admission of new evidence. Generally, new evidence can be admitted if it was not within the applicant’s knowledge during the original trial and it could not have been discovered even with due diligence so that it will form part of the statement in the pleading or one to be adduced by a particular witness within the provisions of the Evidence Act. The evidence in question stated to be new evidence to influence the impugned verdict of the court must also be credible and potentially capable of influencing the judicial discretion of the court with a view to review the final decision and have it substituted with a fresh outcome . It is also the law in Kenya that the admission of new evidence should not be used to create a new case or patch up weak points in the original case. The reason I find is that a review court exercising jurisdiction to admit new evidence must be guided primarily by the Supreme Court decision of Mohammed Abdi Mohamud v. Ahmed Abulahi Mohamad (2018) eKLR”.
27. In the above cited decision of the Supreme Court; Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) , the Court stated as follows;
“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.
28. I agree with the sentiments of the Courts in the above cited authorities. In my view, all these cases agree that an Applicant seeking review on the basis of discovery of new and important evidence must show that the new evidence is likely to have influence/impact on the result of the case. In other words, the courts agree that an applicant must demonstrate that the newly discovered evidence is relevant to the issues at hand and, if admitted, is potentially capable of influencing the judicial discretion of the Court with a view to review the final decision and have it substituted with a fresh outcome.
29. I shall now look at the new document- which the Applicant described as a copy of the entry in the official Register/Record Book of Marriages - in light of the above legal principles, and determine whether the said document is potentially capable of influencing the Court’s determination of the issues that were before the Court.
30. I shall first restate the issue that was before the Court for determination. The 1 st Respondent claimed that she contracted a civil marriage with the Deceased on 25 th November, 1984 in Indiana, USA. She produced a marriage certificate as evidence and proof of the existence of the said marriage. This Court analyzed the said evidence and found that it could be true that the 1 st Respondent and the Deceased contracted a civil marriage on 25 th November, 1984. Having found so, the issue before the Court was whether the said foreign civil marriage could be recognized in Kenya as per Kenyan laws.
31. Put differently, the issue before the Court was not about the existence or otherwise of the alleged civil marriage. Instead, it was a question of recognition of a foreign civil marriage.
32. The applicable law on recognition of foreign civil marriages is Section 40 of the Kenyan Marriage Act 2014 , which provides a follows;
40. Recognition of foreign marriages as civil marriages in Kenya
A civil marriage contracted in a foreign country shall be recognized as a valid marriage if—
(a) it is contracted in accordance with the law of that country;
(b) it is consistent with the provisions of this Part; and
(c) the parties have the capacity to marry under this Act.
33. Section 35 of the Marriage Act provides for celebration of a civil marriage as follows;
Contracting a civil marriage
When a marriage has been celebrated in the presence of a Registrar, the Registrar shall—
(a) complete and sign a marriage certificate in the prescribed form; and (b) cause the marriage certificate to be signed by the parties and by the witnesses to the marriage and give two copies of the marriage certificate to the parties and retain one copy.
34. Courts have interpreted the above on several occasions, in which they have given guidance on how a Kenyan Court should assess compliance with the above provision, Section 40 of the Marriage Act.
35. In re Estate of Nyoro Julia Nguhi Wanjiru (Deceased) [2019] KEHC 7456 (KLR) , the Court faced a similar question and found that the foreign civil marriage must conform to the provisions of Part IV of the Marriage Act , Section 35, which requires the marriage certificate to be signed by both parties and witnesses to the said marriage. The Court held as follows;
“One of the requirements for recognition of civil marriages is that they conform to the provisions of Part IV of the Marriage Act. Section 35 which falls under Part IV requires the Registrar of Marriage to cause the marriage certificate to be signed by the parties and by the witnesses to the marriage. The parties are then issued with two copies of the marriage certificate while the Registrar retains one copy thereof. The 1 st Objector did not however produce any such copy duly signed by both himself and the deceased nor did he state his reasons for not producing the documents. Without any such document, it cannot be ascertained that the marriage certificate produced was authentic . … A marriage is a contract and it is therefore required that the parties to the marriage append their signatures thereon to bind them to the contract”.
36. The 1 st Respondent admitted that they did not sign the marriage certificate. She explained that, in the Vigo County, State of Indiana, parties to a marriage are not required to sign the marriage certificate. She explained that instead, the parties to a marriage in Vigo County are required to sign a register for marriages, which she claims they did. She now seeks to introduce a new document, which she described as a copy of the entry in the official Register/Record Book of Marriages, to show that they both signed the register of marriages. She wants this piece of evidence to complement the marriage certificate.
37. I have looked at the document in question. In my assessment and on its face, it is an Application for Marriage License, which the 1 st Respondent and the Deceased jointly made on 7 th November, 1984, in anticipation of their marriage which took place on 25 th November, 1984. They signed the document on 7 th November, 1984 and they solemnized their marriage 18 days later on 25 th November, 1984. This means that, on the day they signed the document, they were not married to each other, since the marriage would take place 18 days later.
38. Courts have held that a marriage is a contract and the parties to the marriage append their signatures on the marriage certificate to bind them to the contract. In the instant case, the parties signed the said document on 7 th November, 1984, which was more than 2 weeks before they solemnized their marriage on 25 th November, 1984.
39. It cannot be said that the signatures appended by the parties on the said document bind them to a marriage. In my view, in view of the provisions of Section 40, this document cannot be an equivalent to the signatures required on a marriage certificate under Section 35. Given the reasons outlined above, I am firmly convinced that the document in question cannot rectify the deficiencies of the marriage certificate provided by the 1 st Respondent for recognition as a valid marriage in Kenya.
40. A foreign civil marriage can only be recognized in Kenya if the said marriage is in compliance with Section 40 of the Kenyan Marriage Act . The said Section requires the parties to produce a marriage certificate in compliance with other statutory requirements outlined in Part IV of the Act which provides for civil marriages. The 1 st Respondent has not satisfied the above requirements because the signatures appearing on the document in question cannot be used to substitute for/complement the requirement that the marriage certificate must be signed by both parties.
41. Having found so, I am of the view that the new evidence is not material/relevant to the issues that were before the Court. The new document, even if admitted, would have no influence/impact on the Court’s determination of the issues that were before the Court. Consequently, I find that the copy of the register of marriages is not a condition of a new and important matter or evidence as required by the law. For these reasons, the application for review lacks merit and is for dismissal.
42. The Appellant is awarded the costs of the application.
43. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI on this 07 TH day of August 2026.
…………………….
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Achapa, Advocate for the 1 st and 2 nd Respondents/Applicants
Ms. Nelima, Advocate for the Appellant/Respondent
CIVIL APPEAL E092 OF 2026 RULING2
2. The 1 st and 2 nd Respondents brought a suit seeking a declaration that they were the only persons entitled to determine the burial and disposal of his remains. They also sought a declaration restraining the Appellant from removing or repatriating the body of the Deceased. The matter proceeded to a full trial, and the parties gave oral testimony before the Court.
3. The Trial Court delivered a judgment on 10 th June, 2026, in which it held in favour of the 1 st Respondent by finding that she is the valid spouse of the Deceased. Accordingly, the Court held that the 1 st and 2 nd Respondents are the only persons entitled to determine the burial and disposal of the deceased’s remains.
4. The Appellant was dissatisfied with the judgment and brought an appeal vide a Memorandum dated 11 th June, 2026.
5. This Court delivered a Judgment on 17 th July, 2026, in which it found in favour of the Appellant. The Court determined that neither the Appellant nor the 1 st Respondent was able to prove that their alleged marriages were recognized in Kenya, and consequently fell back on the conduct of the Deceased to determine who the Deceased regarded as close to him, and therefore the person with the right to bury him.
6. After consideration, the Court found, based on the conduct of the Deceased, that it is more likely than not that the Deceased regarded the Appellant as the person closest to him. It ordered that the body of the Deceased Ronald Evan Ashkin (alias Ron Ashkin) be released to the Appellant to inter the remains in Nigeria. It also found that the 1 st and 2 nd Respondents were at liberty to attend and participate in the burial in Nigeria.
7. During the hearing, the 1 st Respondent produced a marriage certificate to prove her claims that she had contracted a civil marriage with the Deceased on 25 th November, 1984. The marriage certificate did not have their signatures, i.e, the Deceased and the 1 st Respondent did not sign the marriage certificate. The Court held that the said marriage was not consistent with Section 35 of the Marriage Act , which requires that the marriage certificate must be signed by both parties. Consequently, the Court found that the said marriage could not be recognized in Kenya because it did not meet the requirements in Section 40 of the Marriage Act, 2014.
8. The 1 st Respondent was dissatisfied with the Judgment and brought the instant application dated 27 th July, 2026, seeking review of the said Judgment. She sought the following orders;
a) Spent.
b) Spent.
c) Spent.
d) That this Honourable Court be pleased to review its Judgment and Decree delivered on 17 th July, 2026 in Family Appeal No. E091 of 2026, on the ground of the discovery of new and important evidence-namely the official Register/Record Book of Marriages of Vigo County, State of Indiana which, after the exercise of due diligence, was not within the Applicant’s knowledge and could not be produced at the hearing of the appeal.
e) That upon such review, this Honourable Court be pleased to set aside or vary the said Judgment and Decree, and to substitute thereof a finding that the marriage of the 1 st Respondent and the Deceased is valid and recognized in Kenya and an order affirming the entitlement of the 1 st and 2 nd Respondents to the custody, burial, disposal of the remains of the Deceased, or to make such other orders as the Court may deem just.
9. The grounds of the application are enumerated on its face and supported by an affidavit sworn by the 1 st Respondent dated 31 st July, 2026. The 1 st Respondent claimed that since the delivery of the Judgment, she had discovered and retrieved new and important evidence, namely, a certified copy of the entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana, recording the marriage of the 1 st Respondent and the Deceased solemnized on 25 th November, 1984, which directly and conclusively establishes the existence, valid contracting, and registration of the said marriage.
10. She claimed that the said evidence, after the exercise of due diligence, was not within her knowledge or possession and could not be produced at the time the Judgment was delivered. She deponed that the primary record of the marriage is held in the archives of Vigo County and that its retrieval required an archival search in a foreign jurisdiction. She averred that, having only learnt of the death of the Deceased and having been in Kenya since 20 th March 2026 under acute time constraints, produced at the hearing the documents then available to her, namely the marriage certificate issued and filed by Vigo County.
11. She claimed that the new evidence is of such importance and relevance that, had it been before the Court, it would probably have altered the outcome, as it answers conclusively the very finding upon which the non-recognition of the 1 st Respondent’s marriage was founded.
12. The Appellant filed a replying affidavit dated 28 th July, 2026, in which she opposed the instant application. She averred that the purported ‘new and important evidence’ does not meet the strict statutory thresholds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. She deponed that the 1 st Respondent did not satisfy the statutory threshold of due diligence, arguing that she did not demonstrate that the alleged new evidence was not within her knowledge or could not have been produced at the time the decree was passed.
13. She stated that the remedy for review is not intended to afford a party an opportunity to patch up lacunae in their evidence or re-litigate a case that had already been fully heard and determined on merit. She averred that the Court properly scrutinized the document marked as a marriage certificate and noted the absence of required statutory signatures under Section 35 as read with Section 40 of the Marriage Act, 2014. She argued that a re-arguing of how a document ought to have been interpreted is a matter for appeal to the Court of Appeal, not an error subject to review.
14. The Application was heard on 31 st July, 2026, during which Advocates for the respective parties argued the application before this Court.
1 st Respondent Oral Submissions
15. The 1 st Respondent submitted that she has a new document, a certified copy of the entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana, indicating that her marriage with the Deceased was solemnized on 25 th November, 1984. She submitted that if the Court had the said document at the hearing, it would have upheld that she was married to the Deceased. She argued that according to the custom of Vigo County, State of Indiana, parties are not required to sign a marriage certificate but instead sign a register book. She submitted that the Court ought to take cognizance that different jurisdictions have different customs of marriage.
Appellant’s Oral Submissions
16. The Appellant submitted that an application for review on fresh evidence must be treated with caution. She argued that the new document presents the same document that the Court had on appeal. She also submitted that the new document is not evidence of marriage, arguing that the said document does not meet Section 35 of the Marriage Act , requiring signing by both parties. Lastly, she submitted that the 1 st Respondent has not satisfied the test of due diligence, arguing that she obtained the new document after losing at the appeal and that there was no difficulty in obtaining the said document earlier.
Analysis and Determination
17. Having carefully considered the application, the various affidavits, and submissions by the parties, I find that the only issue for determination is whether the application meets the threshold for review.
18. The law on review is set out in Section 80 of the Civil Procedure Act Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 .
19. Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
20. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“1 (1) Any person considering himself aggrieved—
c. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
d. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which , after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
21. Courts have been consistent on the interpretation of the above provisions. In Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: -
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”
22. The application is based on alleged discovery of new and important evidence. The new document has been described as a certified copy of an entry in the official Register/Record Book of Marriages of Vigo County, State of Indiana. The Applicant (the 1 st Respondent) stated that, after exercise of due diligence, the said document was not in her knowledge or possession and she could not produce it at the time of the hearing. She argued that, had it been before the Court, it would probably have altered the outcome, as it conclusively answers the very finding on which her non-recognition of her marriage was founded.
23. This Court is being called upon to determine whether the document in question meets the threshold of “ new and important matter or evidence” to warrant the review of the said Judgment.
24. On this particular aspect, the Court of Appeal in Karanja v Murigi (Civil Appeal 68 of 2019) [2025] KECA 517 (KLR) held that an Applicant seeking review on grounds of discovery of ‘important matter or evidence,’ must demonstrate that the new evidence is material to the case and not merely confirmatory of what was already presented. The Court stated as follows;
“Under these provisions [ section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules], the court may review its orders where it is satisfied on either one of three grounds. First, that there is discovery of new and important evidence which was not available at the time of the hearing despite the exercise of due diligence. Such evidence must be credible, material to the case, and not merely confirmatory of what was already presented” .
25. Similarly, the Court in In re Estate of Richard Kiplangat Tanui (Deceased) [2020] KEHC 3726 (KLR) , observed that an applicant seeking review on grounds of discovery of new evidence should demonstrate that the new evidence would have an impact on the ruling or judgment in question. The Court observed as follows;
“Additionally, it has not been shown what impact the information would have on the delivered ruling ….. Before the trial that resulted to the orders being sought for review, the advocate exercised his due diligence and it is my opinion that the advocate not using the alleged new documents was well discussed by the client. I also agree with the Respondent that the Applicant has not proved what impact the alleged new information would have on the ruling” .
26. In addition, the Court in Wachira v Safaricom Company Limited (Civil Suit E005 of 2022) [2025] KEHC 4697 (KLR) restated the law governing the admission of new evidence during a review of a Judgment. It stated as follows;
“In Kenya’s legal system , the admission of new evidence during a review of a judgment is governed by specific legal principles long established in case law. It is trite law that this motion for it to succeed must be brought within the legal framework on admission of new evidence. Generally, new evidence can be admitted if it was not within the applicant’s knowledge during the original trial and it could not have been discovered even with due diligence so that it will form part of the statement in the pleading or one to be adduced by a particular witness within the provisions of the Evidence Act. The evidence in question stated to be new evidence to influence the impugned verdict of the court must also be credible and potentially capable of influencing the judicial discretion of the court with a view to review the final decision and have it substituted with a fresh outcome . It is also the law in Kenya that the admission of new evidence should not be used to create a new case or patch up weak points in the original case. The reason I find is that a review court exercising jurisdiction to admit new evidence must be guided primarily by the Supreme Court decision of Mohammed Abdi Mohamud v. Ahmed Abulahi Mohamad (2018) eKLR”.
27. In the above cited decision of the Supreme Court; Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) , the Court stated as follows;
“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.
28. I agree with the sentiments of the Courts in the above cited authorities. In my view, all these cases agree that an Applicant seeking review on the basis of discovery of new and important evidence must show that the new evidence is likely to have influence/impact on the result of the case. In other words, the courts agree that an applicant must demonstrate that the newly discovered evidence is relevant to the issues at hand and, if admitted, is potentially capable of influencing the judicial discretion of the Court with a view to review the final decision and have it substituted with a fresh outcome.
29. I shall now look at the new document- which the Applicant described as a copy of the entry in the official Register/Record Book of Marriages - in light of the above legal principles, and determine whether the said document is potentially capable of influencing the Court’s determination of the issues that were before the Court.
30. I shall first restate the issue that was before the Court for determination. The 1 st Respondent claimed that she contracted a civil marriage with the Deceased on 25 th November, 1984 in Indiana, USA. She produced a marriage certificate as evidence and proof of the existence of the said marriage. This Court analyzed the said evidence and found that it could be true that the 1 st Respondent and the Deceased contracted a civil marriage on 25 th November, 1984. Having found so, the issue before the Court was whether the said foreign civil marriage could be recognized in Kenya as per Kenyan laws.
31. Put differently, the issue before the Court was not about the existence or otherwise of the alleged civil marriage. Instead, it was a question of recognition of a foreign civil marriage.
32. The applicable law on recognition of foreign civil marriages is Section 40 of the Kenyan Marriage Act 2014 , which provides a follows;
40. Recognition of foreign marriages as civil marriages in Kenya
A civil marriage contracted in a foreign country shall be recognized as a valid marriage if—
(a) it is contracted in accordance with the law of that country;
(b) it is consistent with the provisions of this Part; and
(c) the parties have the capacity to marry under this Act.
33. Section 35 of the Marriage Act provides for celebration of a civil marriage as follows;
Contracting a civil marriage
When a marriage has been celebrated in the presence of a Registrar, the Registrar shall—
(a) complete and sign a marriage certificate in the prescribed form; and (b) cause the marriage certificate to be signed by the parties and by the witnesses to the marriage and give two copies of the marriage certificate to the parties and retain one copy.
34. Courts have interpreted the above on several occasions, in which they have given guidance on how a Kenyan Court should assess compliance with the above provision, Section 40 of the Marriage Act.
35. In re Estate of Nyoro Julia Nguhi Wanjiru (Deceased) [2019] KEHC 7456 (KLR) , the Court faced a similar question and found that the foreign civil marriage must conform to the provisions of Part IV of the Marriage Act , Section 35, which requires the marriage certificate to be signed by both parties and witnesses to the said marriage. The Court held as follows;
“One of the requirements for recognition of civil marriages is that they conform to the provisions of Part IV of the Marriage Act. Section 35 which falls under Part IV requires the Registrar of Marriage to cause the marriage certificate to be signed by the parties and by the witnesses to the marriage. The parties are then issued with two copies of the marriage certificate while the Registrar retains one copy thereof. The 1 st Objector did not however produce any such copy duly signed by both himself and the deceased nor did he state his reasons for not producing the documents. Without any such document, it cannot be ascertained that the marriage certificate produced was authentic . … A marriage is a contract and it is therefore required that the parties to the marriage append their signatures thereon to bind them to the contract”.
36. The 1 st Respondent admitted that they did not sign the marriage certificate. She explained that, in the Vigo County, State of Indiana, parties to a marriage are not required to sign the marriage certificate. She explained that instead, the parties to a marriage in Vigo County are required to sign a register for marriages, which she claims they did. She now seeks to introduce a new document, which she described as a copy of the entry in the official Register/Record Book of Marriages, to show that they both signed the register of marriages. She wants this piece of evidence to complement the marriage certificate.
37. I have looked at the document in question. In my assessment and on its face, it is an Application for Marriage License, which the 1 st Respondent and the Deceased jointly made on 7 th November, 1984, in anticipation of their marriage which took place on 25 th November, 1984. They signed the document on 7 th November, 1984 and they solemnized their marriage 18 days later on 25 th November, 1984. This means that, on the day they signed the document, they were not married to each other, since the marriage would take place 18 days later.
38. Courts have held that a marriage is a contract and the parties to the marriage append their signatures on the marriage certificate to bind them to the contract. In the instant case, the parties signed the said document on 7 th November, 1984, which was more than 2 weeks before they solemnized their marriage on 25 th November, 1984.
39. It cannot be said that the signatures appended by the parties on the said document bind them to a marriage. In my view, in view of the provisions of Section 40, this document cannot be an equivalent to the signatures required on a marriage certificate under Section 35. Given the reasons outlined above, I am firmly convinced that the document in question cannot rectify the deficiencies of the marriage certificate provided by the 1 st Respondent for recognition as a valid marriage in Kenya.
40. A foreign civil marriage can only be recognized in Kenya if the said marriage is in compliance with Section 40 of the Kenyan Marriage Act . The said Section requires the parties to produce a marriage certificate in compliance with other statutory requirements outlined in Part IV of the Act which provides for civil marriages. The 1 st Respondent has not satisfied the above requirements because the signatures appearing on the document in question cannot be used to substitute for/complement the requirement that the marriage certificate must be signed by both parties.
41. Having found so, I am of the view that the new evidence is not material/relevant to the issues that were before the Court. The new document, even if admitted, would have no influence/impact on the Court’s determination of the issues that were before the Court. Consequently, I find that the copy of the register of marriages is not a condition of a new and important matter or evidence as required by the law. For these reasons, the application for review lacks merit and is for dismissal.
42. The Appellant is awarded the costs of the application.
43. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI on this 07 TH day of August 2026.
…………………….
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Mr. Achapa, Advocate for the 1 st and 2 nd Respondents/Applicants
Ms. Nelima, Advocate for the Appellant/Respondent
CIVIL APPEAL E092 OF 2026 RULING2