The Appellant in an Application dated 7/1/2026 prayed that he be granted leave to file additional evidence by compelling the 1st Respondent to avail the so called Michael Njoroge to avail his National identity card and testify in this instant Appeal or in the alternative to this prayer, the Court leave to the Appellant to file additional evidence by compelling the 1st Respondent to avail the so called Michael Njoroge to avail his National Identity card and testify and further direct the learned trial magistrate to take such viva voce and documentary evidence with such timelines the Court shall direct and that such evidence to be sent back to this Court.
The 2nd prayer is that upon asking prayers 1 or 2 that this Court do order that the additional evidence adduced through viva voce and documentary evidence be declared as properly on record. He who prayed upon the costs of the Application.
In the grounds of supporting the Application, the Appellant said that he was dissatisfied with the Judgment of the Honourable Trial Magistrate in Ol-kalou S.P.M ELC No. e052 of 2024 where her honour adjudged that the inhibition registered against NYANDARUA/OL-KALOU SOUTH/947 be reviewed to enable the 2nd Respondent process his Title for the suit land and that the costs of the suit be borne by the Appellant herein.
He accordingly filed this Appeal one of the basics of which being that Mike Njoroge in Ol-kalou SPM ELC No. E052 of 2024 and Michael Njoroge in Nyahururu CMELC case No. 67 of 2018 are two different people yet the 1st Respondent admitted in his Statement of Defence that it was him who was unable to satisfy the Decree in in Nyahururu CMELC case No. 67 of 2018. The Judgment noted that Michael Njoroge was the son of Mike Njoroge and Michael Njoroge was the one who was sued in Nyahururu CMELC No. 67 of 2018. That although the 1st Respondent in his Defence admitted he was the one who was sued in the above case, the learned Trial Magistrate failed to appreciate the Plaintiffs therefore, the additional evidence to be adduced will aid the Court to get a clear picture of the matter and make an informed decision and further remove vagueness.
He further urged the Court that the additional evidence is not meant to fill gaps, patch up weakness or open the trial but it will enable the Court to pronounce itself fully on the real issues in controversy. She said the evidence is relevant, material credible and directly connected to the issues under this Appeal and that no prejudice would be visited upon the Respondents as the additional evidence is meant to cure the dignity of the Court process and procedure and that it would be in the best interest of justice that the orders sought are granted.
These grounds on the face of the Application aforesaid are replicated almost word for word in the Affidavit in support being of even date.
Order 42, Rule 27 (1) provides for production of additional evidence in an Appellate court. 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; or
(b) 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.
In the Supreme Court of Kenya (Coram: Koome; Cj & P, Ibrahim, Wanjala, Njoki & Ouko, Scjj.) Petition (Application) No. 7 Of 2017 Patrick Thoithi Kanyuira VS Kenya Airports Authority the Supreme Court of Kenya held that once a party brings before the court his entire case, he will be bound by the resulting decision and will not be permitted to re-open that case on the basis of matters which could have been raised, but which were not at the trial.
The English Court of Appeal in the case of Ladd v. Marshall [1954] 1 WLR 1489 established three-part test for the appellate Court to accept fresh evidence in a case in which a judgment has already been delivered, namely, non-availability, relevance and reliability. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that;
(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.
But if, subsequent to the judgment, and before the decision of the appellate court, the appellant wishes to present evidence that he ought to have tendered at the trial but did not, certain prescribed conditions must be satisfied. [4] The English Court of Appeal in the case of Ladd v. Marshall [1954] 1 WLR 1489 established three-part test, namely, non-availability, relevance and reliability, for the appellate Court to accept fresh evidence in a case on which a judgment has already been delivered. Laying down the definitive rule for the admissibility of new evidence Denning LJ, explained that; “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.
In (Kenya) LTD & 3 Others v. Habib Bank AG Zurich [1990] eKLR, the Court said that:
“…….. the Respondent has urged us to find that the Applicant, who has been unsuccessful at the trial and first appellate court, is seeking, through the instant application, to make a fresh case, fill up weak points in his case, is barred by the doctrine of res judicata, and has also not demonstrated that the evidence would not have been obtained with reasonable diligence for use at the trial………………”.
In the Mohamed Abdi Mahamud Case (supra), the Court declared the circumstances under which additional evidence may be admitted, expanding three-part test in Ladd v. Marshall [supra] as follows;
“We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya 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 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;
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 made aware of and procured the further evidence in the course of the 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 the 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 the 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.”
This case does not fulfil any of the principles laid out above. The Court of Appeal in Safe Cargo Limited v Embakasi Properties Limited & 2 Others [2019] eKLR stated as follows:
“Following the guidelines as given by the Supreme Court, it is our duty to consider and determine if the instant application fulfils the principles as laid out in the case above. Of significance is whether the additional evidence sought to be introduced by the applicant is directly relevant to the appeal before this Court and if given, it would influence or impact upon the result of the verdict, and whether 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 trial by the applicant…………………..”
Accordingly, the Application dated 15/4/2026 is dismissed with costs.
Ruling dated and delivered at Nyandarua this 2nd Day of July, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Appellant’s Counsel: Mr. Gakenia.
Respondent’s Counsel: N/A for 1st Respondent.
Mr Gathumbi for 2nd Respondent.