Introduction
1. Before this Court for determination is the Respondent's Notice of Motion dated 21st October 2025, brought under the provisions of Order 42 Rule 27 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act. The Respondent seeks leave to adduce additional documentary evidence in this appeal, namely his List and Bundle of Documents dated 23rd September 2024, and prays that upon such leave being granted, the said documents be deemed as duly filed and served as part of the record of appeal.
2. The Motion is supported by the affidavit of Saad M. Saad, Advocate, sworn on behalf of the Respondent. The Respondent avers that although the impugned documents had been prepared during the proceedings before the trial court, they were inadvertently omitted from the court record due to an error on the part of previous counsel, who mistakenly filed the List of Documents twice but failed to file the accompanying Bundle of Documents. The Respondent contends that the omission was neither deliberate nor intended to prejudice the Appellants and urges the Court not to visit counsel's mistake upon an innocent litigant. It is further asserted that the documents are material to the just determination of the appeal and that their admission would enable the Court to effectively determine the real questions in controversy.
3. The application is opposed through the Appellants' Replying Affidavit. The Appellants contend that the application is misconceived and falls outside the limited jurisdiction conferred upon this Court under Order 42 Rule 27 of the Civil Procedure Rules. They maintain that the documents sought to be introduced were always within the Respondent's possession and knowledge during the proceedings before the subordinate court and that the Respondent had every opportunity to place them before that court but failed to do so.
4. The Appellants further depose that after both parties had closed their respective cases, the Respondent filed a Notice of Motion dated 30th October 2024 before the trial court seeking substantially similar orders, namely that the Bundle of Documents dated 23rd September 2024 be deemed as duly filed and that the hearing be reopened to facilitate their production. That application was opposed and, by a ruling delivered on 21st February 2025, the learned trial magistrate dismissed it, holding that the Respondent had failed to provide sufficient justification for failing to file the documents earlier and that reopening the hearing after the close of the parties' cases would occasion prejudice to the opposing party.
5. The Appellants further state that, being dissatisfied with the ruling of 21st February 2025, the Respondent lodged an appeal before the High Court challenging that interlocutory decision and simultaneously sought orders staying the proceedings before the subordinate court. Interim orders staying the proceedings were granted on 22nd March 2025. However, following the delivery of judgment by the subordinate court, the Respondent elected to withdraw the interlocutory appeal. The Appellants therefore contend that the Respondent cannot now seek substantially the same relief through an application for additional evidence in the present appeal.
6. Both parties filed comprehensive written submissions. The Respondent reiterates that the omission arose solely from counsel's inadvertence and urges the Court to exercise its discretion in favour of substantive justice, relying on the overriding objective under the Civil Procedure Act and the well-established principle that mistakes of counsel ought not, in appropriate circumstances, to be visited upon innocent litigants.
7. The Appellants, on the other hand, submit that Order 42 Rule 27 is an exceptional provision which cannot be invoked to repair evidentiary omissions or enable a party to improve its case after judgment has been rendered. They further submit that the application seeks nothing more than a second opportunity to introduce evidence which ought to have been produced during the trial.
Analysis and Determination
8. I have carefully considered the Notice of Motion, the affidavits filed by the parties, the rival submissions, the authorities cited and the applicable law. In my view, the application turns on a single question, namely whether the Respondent has satisfied the legal threshold for the admission of additional evidence on appeal under Order 42 Rule 27 of the Civil Procedure Rules.
9. The jurisdiction of an appellate court to admit additional evidence is governed by Order 42 Rule 27 of the Civil Procedure Rules. The Rule embodies the long-settled principle that an appeal is ordinarily determined upon the record that was before the trial court. It is only in exceptional circumstances that an appellate court may admit additional evidence, either where the trial court improperly refused to admit evidence which ought to have been admitted or where the appellate court itself requires such evidence to enable it pronounce judgment or for any other substantial cause.
10. The rationale for the Rule is self-evident. Litigation must be conducted in an orderly manner. Parties are expected to present the entirety of their evidence before the trial court, which is the proper forum for receiving, testing and evaluating evidence. The appellate court is concerned principally with reviewing the correctness of the decision reached by the trial court on the material that was properly before it. It is therefore not the function of an appellate court to conduct a retrial or afford dissatisfied litigants an opportunity to improve or reconstruct the evidentiary record after judgment.
11. The governing principles were comprehensively articulated by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, where the Court emphasized that the jurisdiction to admit additional evidence is exceptional and must be exercised with restraint. The Supreme Court held that such evidence must be directly relevant, capable of influencing the outcome, unavailable despite the exercise of reasonable diligence at the trial, and should not be admitted merely to fill gaps, patch up weak points or enable a party to make a fresh case on appeal. The Court further stressed that the discretion must always be exercised in a manner that serves the interests of justice while preserving the integrity of the appellate process.
12. Similar principles were expressed by the Court of Appeal in Wanje v A.K.Saikwa [1984] KECA 58 (KLR), where the Court observed that additional evidence should not be admitted merely to enable a litigant to make up for deficiencies in the evidence tendered before the trial court.
13. Likewise, in Elgood v Regina [1968] EA 274, the former Court of Appeal for East Africa held that additional evidence should only be admitted where it was unavailable despite the exercise of reasonable diligence or where the appellate court itself requires the evidence in order to reach a just determination. Mere relevance, without more, is insufficient.
14. Accordingly, an applicant seeking leave under Order 42 Rule 27 bears the burden of demonstrating that the proposed evidence is genuinely additional, that it could not with reasonable diligence have been produced during the trial, that it is necessary for the proper determination of the appeal, and that its admission would not merely serve to repair deficiencies in the applicant's case.
15. It is against those settled principles that the Respondent's application falls to be examined. The central question is not merely whether the proposed documents may be relevant, but whether the Respondent has demonstrated exceptional circumstances bringing the application within the narrow confines of Order 42 Rule 27 of the Civil Procedure Rules.
16. Applying the foregoing principles to the present application, the first question is whether the documents sought to be introduced constitute additional evidence within the meaning of Order 42 Rule 27. In my considered view, they do not. The Respondent does not contend that the documents came into existence after the conclusion of the trial or that they were subsequently discovered. On the contrary, the material before the Court demonstrates that the documents sought to be introduced comprise the Respondent's List and Bundle of Documents dated 23rd September 2024, which admittedly existed during the pendency of the proceedings before the subordinate court. The Respondent's explanation is simply that, through inadvertence on the part of previous counsel, the accompanying bundle of documents was not filed.
17. That explanation, even if accepted at face value, does not satisfy the requirements of Order 42 Rule 27. The Rule is concerned with evidence which, despite the exercise of reasonable diligence, could not have been produced before the trial court. It is not intended to accommodate evidence which was always available but was omitted through inadvertence or procedural default. If every omission attributable to counsel's mistake were to qualify as additional evidence, the exception under Order 42 Rule 27 would effectively become the rule, thereby undermining the orderly conduct of litigation and eroding the distinction between trial and appellate proceedings.
18. The second inquiry is whether the Respondent has demonstrated that the proposed documents could not, with the exercise of reasonable diligence, have been produced during the trial. Again, the answer must be in the negative. There is no suggestion that the documents were unavailable, inaccessible or outside the Respondent's knowledge during the hearing before the subordinate court. To the contrary, the Respondent acknowledges that the documents had already been prepared and that the failure to file them resulted solely from counsel's omission. In those circumstances, the Court cannot properly conclude that the requirement of reasonable diligence has been satisfied.
19. The procedural history of the matter reinforces that conclusion. It is common ground that after both parties had closed their respective cases, the Respondent filed a Notice of Motion dated 30th October 2024 before the subordinate court seeking leave to have the same bundle of documents deemed as duly filed and to have the hearing reopened. That application was heard inter partes and, in a considered ruling delivered on 21st February 2025, the learned trial magistrate declined to grant the orders sought, holding that the Respondent had failed to demonstrate sufficient reason for the omission and that reopening the hearing would be unfair to the opposing party.
20. This Court is not presently sitting on appeal against that interlocutory ruling. Accordingly, I refrain from expressing any view as to its correctness. Nevertheless, the existence of those proceedings forms an important part of the factual matrix within which the present application falls to be determined. It demonstrates that the Respondent had already invited the trial court to exercise its discretion in respect of the very documents now sought to be introduced and upon substantially the same explanation that is advanced before this Court.
21. The record further shows that, being dissatisfied with the ruling of 21st February 2025, the Respondent lodged an appeal before the High Court challenging that decision and simultaneously sought orders staying the proceedings before the subordinate court. Interim orders of stay were granted on 22nd March 2025 pending the hearing of the application.
22. It is equally not in dispute that before that interlocutory appeal could be determined, the Respondent elected to withdraw it following the delivery of judgment by the subordinate court. That withdrawal does not, in itself, render the present application res judicata, nor does it preclude the Respondent from invoking the jurisdiction conferred by Order 42 Rule 27. However, judicial discretion is exercised against the backdrop of the entire procedural history of a dispute. The Respondent's decision to abandon the challenge to the interlocutory ruling remains a relevant circumstance in considering whether this Court should now exercise its exceptional jurisdiction to grant substantially similar relief.
23. The Court must next consider whether the proposed documents are necessary to enable it pronounce judgment in the appeal. In my respectful view, the Respondent has not demonstrated such necessity. The appeal before this Court challenges the judgment of the subordinate court on the basis of the evidence that was properly before that court. Nothing has been placed before me to suggest that the appellate record is incomplete or so deficient that the issues raised in the Memorandum of Appeal cannot be fairly and effectively determined without the proposed documents.
24. It is true that the proposed documents may well be relevant to the dispute between the parties. Relevance alone, however, is not the statutory test. As the Supreme Court observed in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, additional evidence is not admissible merely because it may strengthen a party's case or because it is capable of assisting that party on appeal. The applicant must demonstrate that the evidence could not, despite the exercise of reasonable diligence, have been presented during the trial and that its admission is necessary in the interests of justice. Likewise, the Court of Appeal in Wanje v A.K.Saikwa [1984] KECA 58 (KLR)cautioned that appellate courts should not permit parties to patch up weak points or repair deficiencies in their evidentiary case after trial. In the present matter, I am unable to conclude that the Respondent has satisfied that threshold.
25. Indeed, the Respondent's own explanation demonstrates that the purpose of the proposed documents is to supplement the evidentiary record upon which the trial court rendered its judgment. Their admission would inevitably alter the factual foundation upon which that judgment was reached and would require this Court to consider evidence that never formed part of the record evaluated by the trial court. Such an approach would fundamentally alter the appellate function of this Court and blur the distinction between a trial and an appeal.
26. I also find merit in the Appellants' contention that permitting the introduction of the proposed documents at this stage would occasion prejudice. The prejudice lies not merely in requiring the Appellants to respond to additional documents, but in reopening factual controversies after the close of the hearing and after judgment has already been rendered. Litigation must eventually come to an end. Save in exceptional circumstances, parties are expected to present their entire evidentiary case before the trial court, and the opposing party is entitled to conduct its case on the legitimate expectation that the evidentiary record will not thereafter be materially altered.
27. In the premises, I am not satisfied that the Respondent has established exceptional circumstances warranting the exercise of this Court's discretion under Order 42 Rule 27 of the Civil Procedure Rules. The application is therefore devoid of merit.
Disposition
28. Accordingly, the Notice of Motion dated 21st October 2025 is hereby dismissed.
a) The prayer seeking leave to adduce additional evidence on appeal in respect of the Respondent's List and Bundle of Documents dated 23rd September 2024, and for the said documents to be deemed as duly filed and served as part of the record of appeal, is declined.
b) The appeal shall proceed to hearing and determination on the basis of the record properly before this Court.
c) The Respondent/Applicant shall bear the costs of the Notice of Motion.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before this Court for determination is the Respondent's Notice of Motion dated 21st October 2025, brought under the provisions of Order 42 Rule 27 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act. The Respondent seeks leave to adduce additional documentary evidence in this appeal, namely his List and Bundle of Documents dated 23rd September 2024, and prays that upon such leave being granted, the said documents be deemed as duly filed and served as part of the record of appeal.
2. The Motion is supported by the affidavit of Saad M. Saad, Advocate, sworn on behalf of the Respondent. The Respondent avers that although the impugned documents had been prepared during the proceedings before the trial court, they were inadvertently omitted from the court record due to an error on the part of previous counsel, who mistakenly filed the List of Documents twice but failed to file the accompanying Bundle of Documents. The Respondent contends that the omission was neither deliberate nor intended to prejudice the Appellants and urges the Court not to visit counsel's mistake upon an innocent litigant. It is further asserted that the documents are material to the just determination of the appeal and that their admission would enable the Court to effectively determine the real questions in controversy.
3. The application is opposed through the Appellants' Replying Affidavit. The Appellants contend that the application is misconceived and falls outside the limited jurisdiction conferred upon this Court under Order 42 Rule 27 of the Civil Procedure Rules. They maintain that the documents sought to be introduced were always within the Respondent's possession and knowledge during the proceedings before the subordinate court and that the Respondent had every opportunity to place them before that court but failed to do so.
4. The Appellants further depose that after both parties had closed their respective cases, the Respondent filed a Notice of Motion dated 30th October 2024 before the trial court seeking substantially similar orders, namely that the Bundle of Documents dated 23rd September 2024 be deemed as duly filed and that the hearing be reopened to facilitate their production. That application was opposed and, by a ruling delivered on 21st February 2025, the learned trial magistrate dismissed it, holding that the Respondent had failed to provide sufficient justification for failing to file the documents earlier and that reopening the hearing after the close of the parties' cases would occasion prejudice to the opposing party.
5. The Appellants further state that, being dissatisfied with the ruling of 21st February 2025, the Respondent lodged an appeal before the High Court challenging that interlocutory decision and simultaneously sought orders staying the proceedings before the subordinate court. Interim orders staying the proceedings were granted on 22nd March 2025. However, following the delivery of judgment by the subordinate court, the Respondent elected to withdraw the interlocutory appeal. The Appellants therefore contend that the Respondent cannot now seek substantially the same relief through an application for additional evidence in the present appeal.
6. Both parties filed comprehensive written submissions. The Respondent reiterates that the omission arose solely from counsel's inadvertence and urges the Court to exercise its discretion in favour of substantive justice, relying on the overriding objective under the Civil Procedure Act and the well-established principle that mistakes of counsel ought not, in appropriate circumstances, to be visited upon innocent litigants.
7. The Appellants, on the other hand, submit that Order 42 Rule 27 is an exceptional provision which cannot be invoked to repair evidentiary omissions or enable a party to improve its case after judgment has been rendered. They further submit that the application seeks nothing more than a second opportunity to introduce evidence which ought to have been produced during the trial.
Analysis and Determination
8. I have carefully considered the Notice of Motion, the affidavits filed by the parties, the rival submissions, the authorities cited and the applicable law. In my view, the application turns on a single question, namely whether the Respondent has satisfied the legal threshold for the admission of additional evidence on appeal under Order 42 Rule 27 of the Civil Procedure Rules.
9. The jurisdiction of an appellate court to admit additional evidence is governed by Order 42 Rule 27 of the Civil Procedure Rules. The Rule embodies the long-settled principle that an appeal is ordinarily determined upon the record that was before the trial court. It is only in exceptional circumstances that an appellate court may admit additional evidence, either where the trial court improperly refused to admit evidence which ought to have been admitted or where the appellate court itself requires such evidence to enable it pronounce judgment or for any other substantial cause.
10. The rationale for the Rule is self-evident. Litigation must be conducted in an orderly manner. Parties are expected to present the entirety of their evidence before the trial court, which is the proper forum for receiving, testing and evaluating evidence. The appellate court is concerned principally with reviewing the correctness of the decision reached by the trial court on the material that was properly before it. It is therefore not the function of an appellate court to conduct a retrial or afford dissatisfied litigants an opportunity to improve or reconstruct the evidentiary record after judgment.
11. The governing principles were comprehensively articulated by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, where the Court emphasized that the jurisdiction to admit additional evidence is exceptional and must be exercised with restraint. The Supreme Court held that such evidence must be directly relevant, capable of influencing the outcome, unavailable despite the exercise of reasonable diligence at the trial, and should not be admitted merely to fill gaps, patch up weak points or enable a party to make a fresh case on appeal. The Court further stressed that the discretion must always be exercised in a manner that serves the interests of justice while preserving the integrity of the appellate process.
12. Similar principles were expressed by the Court of Appeal in Wanje v A.K.Saikwa [1984] KECA 58 (KLR), where the Court observed that additional evidence should not be admitted merely to enable a litigant to make up for deficiencies in the evidence tendered before the trial court.
13. Likewise, in Elgood v Regina [1968] EA 274, the former Court of Appeal for East Africa held that additional evidence should only be admitted where it was unavailable despite the exercise of reasonable diligence or where the appellate court itself requires the evidence in order to reach a just determination. Mere relevance, without more, is insufficient.
14. Accordingly, an applicant seeking leave under Order 42 Rule 27 bears the burden of demonstrating that the proposed evidence is genuinely additional, that it could not with reasonable diligence have been produced during the trial, that it is necessary for the proper determination of the appeal, and that its admission would not merely serve to repair deficiencies in the applicant's case.
15. It is against those settled principles that the Respondent's application falls to be examined. The central question is not merely whether the proposed documents may be relevant, but whether the Respondent has demonstrated exceptional circumstances bringing the application within the narrow confines of Order 42 Rule 27 of the Civil Procedure Rules.
16. Applying the foregoing principles to the present application, the first question is whether the documents sought to be introduced constitute additional evidence within the meaning of Order 42 Rule 27. In my considered view, they do not. The Respondent does not contend that the documents came into existence after the conclusion of the trial or that they were subsequently discovered. On the contrary, the material before the Court demonstrates that the documents sought to be introduced comprise the Respondent's List and Bundle of Documents dated 23rd September 2024, which admittedly existed during the pendency of the proceedings before the subordinate court. The Respondent's explanation is simply that, through inadvertence on the part of previous counsel, the accompanying bundle of documents was not filed.
17. That explanation, even if accepted at face value, does not satisfy the requirements of Order 42 Rule 27. The Rule is concerned with evidence which, despite the exercise of reasonable diligence, could not have been produced before the trial court. It is not intended to accommodate evidence which was always available but was omitted through inadvertence or procedural default. If every omission attributable to counsel's mistake were to qualify as additional evidence, the exception under Order 42 Rule 27 would effectively become the rule, thereby undermining the orderly conduct of litigation and eroding the distinction between trial and appellate proceedings.
18. The second inquiry is whether the Respondent has demonstrated that the proposed documents could not, with the exercise of reasonable diligence, have been produced during the trial. Again, the answer must be in the negative. There is no suggestion that the documents were unavailable, inaccessible or outside the Respondent's knowledge during the hearing before the subordinate court. To the contrary, the Respondent acknowledges that the documents had already been prepared and that the failure to file them resulted solely from counsel's omission. In those circumstances, the Court cannot properly conclude that the requirement of reasonable diligence has been satisfied.
19. The procedural history of the matter reinforces that conclusion. It is common ground that after both parties had closed their respective cases, the Respondent filed a Notice of Motion dated 30th October 2024 before the subordinate court seeking leave to have the same bundle of documents deemed as duly filed and to have the hearing reopened. That application was heard inter partes and, in a considered ruling delivered on 21st February 2025, the learned trial magistrate declined to grant the orders sought, holding that the Respondent had failed to demonstrate sufficient reason for the omission and that reopening the hearing would be unfair to the opposing party.
20. This Court is not presently sitting on appeal against that interlocutory ruling. Accordingly, I refrain from expressing any view as to its correctness. Nevertheless, the existence of those proceedings forms an important part of the factual matrix within which the present application falls to be determined. It demonstrates that the Respondent had already invited the trial court to exercise its discretion in respect of the very documents now sought to be introduced and upon substantially the same explanation that is advanced before this Court.
21. The record further shows that, being dissatisfied with the ruling of 21st February 2025, the Respondent lodged an appeal before the High Court challenging that decision and simultaneously sought orders staying the proceedings before the subordinate court. Interim orders of stay were granted on 22nd March 2025 pending the hearing of the application.
22. It is equally not in dispute that before that interlocutory appeal could be determined, the Respondent elected to withdraw it following the delivery of judgment by the subordinate court. That withdrawal does not, in itself, render the present application res judicata, nor does it preclude the Respondent from invoking the jurisdiction conferred by Order 42 Rule 27. However, judicial discretion is exercised against the backdrop of the entire procedural history of a dispute. The Respondent's decision to abandon the challenge to the interlocutory ruling remains a relevant circumstance in considering whether this Court should now exercise its exceptional jurisdiction to grant substantially similar relief.
23. The Court must next consider whether the proposed documents are necessary to enable it pronounce judgment in the appeal. In my respectful view, the Respondent has not demonstrated such necessity. The appeal before this Court challenges the judgment of the subordinate court on the basis of the evidence that was properly before that court. Nothing has been placed before me to suggest that the appellate record is incomplete or so deficient that the issues raised in the Memorandum of Appeal cannot be fairly and effectively determined without the proposed documents.
24. It is true that the proposed documents may well be relevant to the dispute between the parties. Relevance alone, however, is not the statutory test. As the Supreme Court observed in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, additional evidence is not admissible merely because it may strengthen a party's case or because it is capable of assisting that party on appeal. The applicant must demonstrate that the evidence could not, despite the exercise of reasonable diligence, have been presented during the trial and that its admission is necessary in the interests of justice. Likewise, the Court of Appeal in Wanje v A.K.Saikwa [1984] KECA 58 (KLR)cautioned that appellate courts should not permit parties to patch up weak points or repair deficiencies in their evidentiary case after trial. In the present matter, I am unable to conclude that the Respondent has satisfied that threshold.
25. Indeed, the Respondent's own explanation demonstrates that the purpose of the proposed documents is to supplement the evidentiary record upon which the trial court rendered its judgment. Their admission would inevitably alter the factual foundation upon which that judgment was reached and would require this Court to consider evidence that never formed part of the record evaluated by the trial court. Such an approach would fundamentally alter the appellate function of this Court and blur the distinction between a trial and an appeal.
26. I also find merit in the Appellants' contention that permitting the introduction of the proposed documents at this stage would occasion prejudice. The prejudice lies not merely in requiring the Appellants to respond to additional documents, but in reopening factual controversies after the close of the hearing and after judgment has already been rendered. Litigation must eventually come to an end. Save in exceptional circumstances, parties are expected to present their entire evidentiary case before the trial court, and the opposing party is entitled to conduct its case on the legitimate expectation that the evidentiary record will not thereafter be materially altered.
27. In the premises, I am not satisfied that the Respondent has established exceptional circumstances warranting the exercise of this Court's discretion under Order 42 Rule 27 of the Civil Procedure Rules. The application is therefore devoid of merit.
Disposition
28. Accordingly, the Notice of Motion dated 21st October 2025 is hereby dismissed.
a) The prayer seeking leave to adduce additional evidence on appeal in respect of the Respondent's List and Bundle of Documents dated 23rd September 2024, and for the said documents to be deemed as duly filed and served as part of the record of appeal, is declined.
b) The appeal shall proceed to hearing and determination on the basis of the record properly before this Court.
c) The Respondent/Applicant shall bear the costs of the Notice of Motion.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent