Introduction and Background
1. The Respondents have moved the court by the Notice of Motion dated 3 rd February 2026 and made under sections 1A,1B, 3A and 63(e) of the Civil Procedure Act(Chapter 21 of the Laws of Kenya) and Order 42, Rules 27, 28 & 29 and Order 51 Rule 1 of the Civil Procedure Rules seeking leave to adduce and rely on additional evidence in this appeal being a consent judgment from another case Mavoko CMCC No. 435 of 2019 - Janet Ndila Ngulu Vs Modern Coast Coaches Limited ). They seek that this judgment be admitted as evidence for the appeal or, alternatively, to be allowed to file a supplementary Record of Appeal.
2. The application is supported by the grounds on its face and the supporting affidavit of Annah Nditu Muuo sworn on 3 rd February 2026. It is opposed by the Appellant through the replying affidavit of Carren Cheruto, who serves as its Legal Officer, sworn on 13 th February 2026. The application was canvassed by way of written submissions which are on record and I have considered the same together with the pleadings and I will make relevant references to them in my analysis and determination below.
Analysis and Determination
3. The main issue falling for determination is whether the Respondent ought to be allowed to introduce additional evidence at this appellate stage. As the parties have submitted, under section 78 of the Civil Procedure Act, an appellate court such as this one has power to to take additional evidence or to require the evidence to be taken. The parties are also correct to submit that this position is supported by Order 42 Rule 27 of the Civil Procedure Rules which provides as follows:
27. Production of additional evidence in appellate court [Order 42, rule 27.]
(1) 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.
(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.
4. The decision as to whether or not to admit additional evidence on appeal is an exercise of judicial discretion. Like all other discretions, the same must be exercised judiciously and not capriciously, the only caveat being that in admitting further evidence, the court must record the reason for allowing such adduction (See Ken Iron and Steel Ltd v Commissioner of Investigations and Enforcement [2022] KEHC 93 (KLR)]
5. The parties correctly cite the decision of the Supreme Court in Mahamud v Mohamad & 3 others [2018] KESC 62 (KLR) , which laid down the governing principles on allowing additional evidence by an appellate court 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”.
6. The Respondents contend that they had listed Janet Ndila Ngulu as a key witness in their case before the subordinate court as she was the pillion passenger on the motorcycle with the Deceased during the accident and was the only known eyewitness. However, that Ms. Ngulu failed or refused to attend court during the trial, which forced the Respondents to proceed with their case without her crucial testimony but they have recently discovered that Ms. Ngulu filed her own suit Mavoko CMCC No. 435 of 2019 against the same Appellant over the same accident and in that case, the Appellant agreed to a consent judgment on liability and damages, agreeing to compensate Ms. Ngulu.
7. The Respondents depone that this new evidence is material and relevant as it directly proves the Appellant's liability in the same accident, was not available at the time of the trial and could not have been obtained despite reasonable diligence and that its admission will not prejudice the Appellant.
8. In response, the Appellant avers that Respondents do not meet the strict and exhaustive test set out under Order 42 Rule 27 of the Rules because the first exception, that the trial court refused to admit evidence, does not apply, as the consent judgment was never tendered at trial and the second exception, that the appellate court itself requires the evidence to pronounce judgment, or that substantial cause exists, is also not satisfied.
9. The Appellant contends that the consent judgment from the other suit is not legally relevant to this appeal because the cases involve different parties in different capacities since in the present appeal, the Deceased was a rider, while in the other suit, Ms. Ngulu was a pillion passenger and these roles involve different duties of care and liability considerations. That similarity of names does not establish legal identity or connection between the two suits and that the two suits were never consolidated, and there was no direction that one would be a test case for the other.
10. The Appellant states that the present application is an attempt to circumvent the fact that Ms. Ngulu refused to testify in the primary suit, meaning her credibility was never assessed by the trial court. That the application is meant to patch up weak points and fill evidentiary gaps in the Respondents' case that were exposed by the Appellant's appeal and admitting the consent judgment would violate the Appellant's constitutional right under Article 50 to challenge adverse evidence through cross-examination, as the consent judgment was never tested in court.
11. The Appellant states that allowing this evidence would permit the Respondents to rewrite the evidentiary record that was before the trial court, which is impermissible in law and as such prays that the application be dismissed with costs, as it is unmerited, jurisdictionally unsustainable and procedurally abusive.
12. I have gone through the pleadings and submissions and juxtaposed the same with the principles set out above for the adduction of additional evidence and I find that the Respondents have not sufficiently met the threshold for the admission of additional evidence on appeal. Whereas the consent judgment is relevant as it arises from the same accident, I am in agreement with the Appellant that it would unlikely influence the decision on liability considering the Deceased was the rider of the motor cycle and Ms. Ngulu was the pillion passenger and that the two roles involve different duties of care and liability considerations (see Wahinya v Lucheveleli [2022] KEHC 13762 (KLR)].
13. Further, the consent judgment was recorded on 28 th March 2024, while the primary suit judgment between the parties herein was delivered on 4 th July 2024. The suit, Mavoko CMCC No. 435 of 2019, was filed by the Respondent's own listed witness, Ms. Ngulu and I find that the Respondent cannot credibly claim ignorance of proceedings instituted by their own witness, especially when they had listed her as their only eyewitness. Indeed, as noted by the trial court in its judgment, the Respondents made a decision not to call eyewitnesses in court and there was no evidence of Ms. Ngulu’s refusal to attend court as a witness. The Respondents were aware of Ms. Ngulu as their witness and I find that with reasonable diligence, they could have followed up on her parallel suit or even sought to consolidate the matters.
14. As the trial court specifically noted that no eyewitness was called, I note that the Appellant's appeal challenges liability on this very ground and it is not far-fetched to conclude that the Respondents are now attempting to introduce the consent judgment to cure that evidentiary lacuna. That this application appears to be an attempt to patch up the weakness in their case at trial of failing to call Ms. Ngulu or otherwise prove liability. I am also in agreement with the Appellant that it would suffer real prejudice being that it has already filed its submissions on the appeal based on the record as it stood before the trial court and admitting new evidence at this stage would fundamentally alter the basis of the appeal and deny it the opportunity to cross-examine the evidence.
15. I am in further agreement with the Appellant’s submission that the Respondents’ reliance on sections 18, 20, 24, 34, and 61 of the Evidence Act is misplaced because a consent judgment is not evidence given by a witness under section 34 , admissions under section 24 are not conclusive proof and section 61 applies to admissions between parties to the same proceeding, not strangers. The Appellant correctly submits that estoppel requires identity of parties, subject matter and reliance, none of which exist here. The two suits involve different parties in different capacities of a rider and passenger, engaging different duties of care and liability considerations. The Mavoko suit was filed by the Respondents’ own witness and existed throughout the trial and no satisfactory explanation has been offered for the failure to obtain and produce it.
16. Therefore, while the consent judgment is relevant and credible in a general sense, the application is fundamentally an attempt to fill an evidentiary gap exposed by the Appellant's appeal which is the mischief the courts have consistently warned against.
17. The Respondent had ample opportunity to compel Ms. Ngulu to attend court as a witness, seek consolidation of the two suits and apply to reopen their case or seek adjournment to obtain the consent judgment before the trial court delivered its judgment. Having failed to do so, they cannot now be permitted to patch up their case on appeal.
Conclusion and Disposition
18. It is for the above reasons that the Respondents’ application dated 3 rd February 2026 cannot succeed and fails with the consequence of it being dismissed. Costs will abide by the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. for the Applicant
2. Ms. for the Respondent
3. Abdisalan- Court Assistant
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1. The Respondents have moved the court by the Notice of Motion dated 3 rd February 2026 and made under sections 1A,1B, 3A and 63(e) of the Civil Procedure Act(Chapter 21 of the Laws of Kenya) and Order 42, Rules 27, 28 & 29 and Order 51 Rule 1 of the Civil Procedure Rules seeking leave to adduce and rely on additional evidence in this appeal being a consent judgment from another case Mavoko CMCC No. 435 of 2019 - Janet Ndila Ngulu Vs Modern Coast Coaches Limited ). They seek that this judgment be admitted as evidence for the appeal or, alternatively, to be allowed to file a supplementary Record of Appeal.
2. The application is supported by the grounds on its face and the supporting affidavit of Annah Nditu Muuo sworn on 3 rd February 2026. It is opposed by the Appellant through the replying affidavit of Carren Cheruto, who serves as its Legal Officer, sworn on 13 th February 2026. The application was canvassed by way of written submissions which are on record and I have considered the same together with the pleadings and I will make relevant references to them in my analysis and determination below.
Analysis and Determination
3. The main issue falling for determination is whether the Respondent ought to be allowed to introduce additional evidence at this appellate stage. As the parties have submitted, under section 78 of the Civil Procedure Act, an appellate court such as this one has power to to take additional evidence or to require the evidence to be taken. The parties are also correct to submit that this position is supported by Order 42 Rule 27 of the Civil Procedure Rules which provides as follows:
27. Production of additional evidence in appellate court [Order 42, rule 27.]
(1) 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.
(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.
4. The decision as to whether or not to admit additional evidence on appeal is an exercise of judicial discretion. Like all other discretions, the same must be exercised judiciously and not capriciously, the only caveat being that in admitting further evidence, the court must record the reason for allowing such adduction (See Ken Iron and Steel Ltd v Commissioner of Investigations and Enforcement [2022] KEHC 93 (KLR)]
5. The parties correctly cite the decision of the Supreme Court in Mahamud v Mohamad & 3 others [2018] KESC 62 (KLR) , which laid down the governing principles on allowing additional evidence by an appellate court 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”.
6. The Respondents contend that they had listed Janet Ndila Ngulu as a key witness in their case before the subordinate court as she was the pillion passenger on the motorcycle with the Deceased during the accident and was the only known eyewitness. However, that Ms. Ngulu failed or refused to attend court during the trial, which forced the Respondents to proceed with their case without her crucial testimony but they have recently discovered that Ms. Ngulu filed her own suit Mavoko CMCC No. 435 of 2019 against the same Appellant over the same accident and in that case, the Appellant agreed to a consent judgment on liability and damages, agreeing to compensate Ms. Ngulu.
7. The Respondents depone that this new evidence is material and relevant as it directly proves the Appellant's liability in the same accident, was not available at the time of the trial and could not have been obtained despite reasonable diligence and that its admission will not prejudice the Appellant.
8. In response, the Appellant avers that Respondents do not meet the strict and exhaustive test set out under Order 42 Rule 27 of the Rules because the first exception, that the trial court refused to admit evidence, does not apply, as the consent judgment was never tendered at trial and the second exception, that the appellate court itself requires the evidence to pronounce judgment, or that substantial cause exists, is also not satisfied.
9. The Appellant contends that the consent judgment from the other suit is not legally relevant to this appeal because the cases involve different parties in different capacities since in the present appeal, the Deceased was a rider, while in the other suit, Ms. Ngulu was a pillion passenger and these roles involve different duties of care and liability considerations. That similarity of names does not establish legal identity or connection between the two suits and that the two suits were never consolidated, and there was no direction that one would be a test case for the other.
10. The Appellant states that the present application is an attempt to circumvent the fact that Ms. Ngulu refused to testify in the primary suit, meaning her credibility was never assessed by the trial court. That the application is meant to patch up weak points and fill evidentiary gaps in the Respondents' case that were exposed by the Appellant's appeal and admitting the consent judgment would violate the Appellant's constitutional right under Article 50 to challenge adverse evidence through cross-examination, as the consent judgment was never tested in court.
11. The Appellant states that allowing this evidence would permit the Respondents to rewrite the evidentiary record that was before the trial court, which is impermissible in law and as such prays that the application be dismissed with costs, as it is unmerited, jurisdictionally unsustainable and procedurally abusive.
12. I have gone through the pleadings and submissions and juxtaposed the same with the principles set out above for the adduction of additional evidence and I find that the Respondents have not sufficiently met the threshold for the admission of additional evidence on appeal. Whereas the consent judgment is relevant as it arises from the same accident, I am in agreement with the Appellant that it would unlikely influence the decision on liability considering the Deceased was the rider of the motor cycle and Ms. Ngulu was the pillion passenger and that the two roles involve different duties of care and liability considerations (see Wahinya v Lucheveleli [2022] KEHC 13762 (KLR)].
13. Further, the consent judgment was recorded on 28 th March 2024, while the primary suit judgment between the parties herein was delivered on 4 th July 2024. The suit, Mavoko CMCC No. 435 of 2019, was filed by the Respondent's own listed witness, Ms. Ngulu and I find that the Respondent cannot credibly claim ignorance of proceedings instituted by their own witness, especially when they had listed her as their only eyewitness. Indeed, as noted by the trial court in its judgment, the Respondents made a decision not to call eyewitnesses in court and there was no evidence of Ms. Ngulu’s refusal to attend court as a witness. The Respondents were aware of Ms. Ngulu as their witness and I find that with reasonable diligence, they could have followed up on her parallel suit or even sought to consolidate the matters.
14. As the trial court specifically noted that no eyewitness was called, I note that the Appellant's appeal challenges liability on this very ground and it is not far-fetched to conclude that the Respondents are now attempting to introduce the consent judgment to cure that evidentiary lacuna. That this application appears to be an attempt to patch up the weakness in their case at trial of failing to call Ms. Ngulu or otherwise prove liability. I am also in agreement with the Appellant that it would suffer real prejudice being that it has already filed its submissions on the appeal based on the record as it stood before the trial court and admitting new evidence at this stage would fundamentally alter the basis of the appeal and deny it the opportunity to cross-examine the evidence.
15. I am in further agreement with the Appellant’s submission that the Respondents’ reliance on sections 18, 20, 24, 34, and 61 of the Evidence Act is misplaced because a consent judgment is not evidence given by a witness under section 34 , admissions under section 24 are not conclusive proof and section 61 applies to admissions between parties to the same proceeding, not strangers. The Appellant correctly submits that estoppel requires identity of parties, subject matter and reliance, none of which exist here. The two suits involve different parties in different capacities of a rider and passenger, engaging different duties of care and liability considerations. The Mavoko suit was filed by the Respondents’ own witness and existed throughout the trial and no satisfactory explanation has been offered for the failure to obtain and produce it.
16. Therefore, while the consent judgment is relevant and credible in a general sense, the application is fundamentally an attempt to fill an evidentiary gap exposed by the Appellant's appeal which is the mischief the courts have consistently warned against.
17. The Respondent had ample opportunity to compel Ms. Ngulu to attend court as a witness, seek consolidation of the two suits and apply to reopen their case or seek adjournment to obtain the consent judgment before the trial court delivered its judgment. Having failed to do so, they cannot now be permitted to patch up their case on appeal.
Conclusion and Disposition
18. It is for the above reasons that the Respondents’ application dated 3 rd February 2026 cannot succeed and fails with the consequence of it being dismissed. Costs will abide by the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. for the Applicant
2. Ms. for the Respondent
3. Abdisalan- Court Assistant
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