REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E969 OF 2024
(Coram: Andayi W. F., J.)
TELEPOSTA SACCO SOCIETY LIMITED...........................................………APPELLANT
VERSUS
RICHARD W. THUKU…………………………………..……….…………………RESPONDENT
(Being an Appeal from the Judgment of the Co-operative Tribunal at Nairobi on 25th July 2024 in Co-operative Tribunal Claim No. 360 of 2018)
RULING
1. The appellant herein, Telepost Sacco Society Ltd, is dissatisfied with the judgment of the Co-operative Tribunal (CT) delivered on 25th July 2024 and has appealed that decision to this court through the memorandum of appeal dated 16th August 2024.
2. However, after the appeal was admitted for hearing and parties filed submissions, the appellant filed an application by way of notice of motion dated 8th July 2025 seeking orders that leave be granted to the appellant to adduce additional documentary evidence being a report by the Acting Chief Executive Officer of the Sacco Societies Regulatory Authority (SASRA) for consideration by this court in deciding the matter and the same be filed through a supplementary record of appeal and that the costs of the application be in the cause of the appeal.
3. The application is filed under section 1A,1B, 3A, and section 78A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rules 27, 28, and 29, and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
4. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit sworn on 8th July 2025 by Maryanne Ndekei, the Chief Executive Officer of the appellant.
5. The grounds are that the respondent herein was the chairman of the board of the appellant sacco. SASRA, upon conducting investigations into the management and operations of the appellant, prepared a report that contains the grounds and reasons for the removal of the respondent as an official of the appellant Sacco. That, the report implicates the respondent in misfeasance during the period he was an official of the appellant, by taking loans without following due procedure and failing to repay, which the respondent had denied throughout the proceedings before the CT. The report thus clarifies the position regarding that issue.
6. The rest of the grounds are basically that the application meets the provisions for the grant of an order for adducing additional evidence as provided for in law.
7. The respondent has opposed the application through a replying affidavit sworn on August 6, 2025. He deposes that the application does not meet the threshold for introducing new evidence on appeal as required under Section 78(1)(d) of the Civil Procedure Act and under Orders 42, Rules 27, 28, and 29 of the Civil Procedure Rules.
8. Further, that, the applicant has failed to demonstrate that the intended evidence could not have been obtained with reasonable diligence for use at the trial, since the Report of the Sacco Societies Regulatory Authority (SASRA) dated February 2, 2017, was available to the applicant all along. Further, the evidence sought to be adduced is voluminous and would prejudice the respondent in responding to it, as it is intended to introduce new issues that were not part of the original dispute. Further, that, the report is not supported by evidence and/or documents, and it will not be subjected to cross-examination as would have been the case if produced before the CT.
9. The application was disposed of on the written submissions of learned counsels for both parties, which are considered in the analysis.
10. I have considered the application and the submissions made by learned counsels for the parties. Learned counsels for the parties have set out issues for determination, all of which can be summed up as one: whether the application meets the requirements for leave to adduce additional evidence on appeal.
11. Section 78(1)(d) of the Civil Procedure Act under which the application herein is filed provides as follows:
Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) …
(d) to take additional evidence or to require the evidence to be taken;
12. The provision is expounded in Order 42 Rule 27 of the Civil Procedure Rules as follows:
(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.
13. The courts have explained these provisions of the law for their meaning and purport as seen in the various authorities cited by learned counsels for the parties such as Kenya Electricity Transmission Company Limited v Onsongo & another (Environment and Land Appeal E028 of 2022) [2024] KEELC 4871 (KLR) (20 June 2024) (Ruling). In Wanje v Saikwa (1984) KLR 275 the Court of Appeal, Chesoni Ag JA, considering the said provisions, held thus;
“...this rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence."
14. The Supreme Court has also given guidance on the issue in the case of Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018) (Consolidated) [2018] KESC 62, where it stated that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:
a. 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 additional evidence.
b. It must be evidence relevant to the issues.
c. It must be evidence which is credible in the sense that it is capable of belief.
d. 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;
e. The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given.
f. The application to admit additional evidence must be brought without undue delay.
15. The Supreme Court went on to state that courts should be more stringent to allow a party to adduce additional evidence to re-open a case which has already been completed, on appeal.
16. The guidelines above are not exhaustive but they are sufficient to cover the issues raised in the present application.
17. Learned counsel for the appellant submits that the additional evidence is credible and relevant to the issues, it will most likely influence the case, the evidence could not have been produced at the time of the trial and the evidence will not prejudice the respondent.
18. Learned counsel for the respondent submits that the report sought to be produced is dated 2nd February 2017 and for that reason the appellant ought to have produced it before the CT.
19. Going by the six guidelines set out by the Supreme Court, even as they are not exhaustive, I find that the applicant successfully satisfies four of them, namely: that the evidence is relevant to the issues; is credible in the sense that it is capable of belief; if given, it would probably influence the result of the case, even if nit in a decisive manner; and the evidence sought to be given is annexed to the affidavit supporting the application.
20. However, the requirements that even after the exercise of due diligence, the evidence was not within the knowledge of, or could not have been produced at the time of the claim, and that the application to admit additional evidence was brought without undue delay have not been met.
21. I have considered the proceedings before the CT and I can see that during cross-examination of PW 1, Maryanne Wanjuku Gikenye for the appellant, referred to the report when she said that, “… reversals were as per SASRA investigations – copy of findings.” This, to me, means that the appellant was well aware of and had the report. It is interesting, though, that the report is not mentioned at all in the witness statement of Maryanne Ndekei, which PW 1 adopted as her evidence in chief before the CT. I suppose that Maryanne Ndekei and Maryanne Wanjuku Gikenye is the same person, the Chief Executive Officer of the appellant.
22. Again, it cannot be the case that the appellant could not have had the report yet it was the basis of its claim against the respondent as is now evident from the present application.
23. On the issue of delay, I find that this application, coming after the parties in this appeal had filed submissions for the disposal of the appeal, is clearly an afterthought. It is intended to fill in lacunae in the appellant’s claim that the CT pointed out in its judgment, that the appellant had not adduced sufficient evidence to prove the claim.
24. Considering the claim dated 26th July 2018 as filed before the CT, it is presented as a claim for recovery of various loans advanced to the respondent by the appellant, and the appellant was seeking recovery thereof. Such a claim falls under Part XIV of the Act on Settlement of Disputes. The CT proceeded as such and made its decision thereon.
25. However, now looking at the present application and the report sought to be introduced as additional evidence, it turns out that in fact, the claim also fell under Part XIII of the Act on Surcharge.
26. Recovery proceedings under these two parts, including the appellate jurisdiction of this court, are different. The jurisdiction of the CT under Part XIII for Surcharge is appellate, whereas the jurisdiction of the CT under Part XIV on the Settlement of Disputes is original, as would be before a trial court. The two jurisdictions are not interchangeable and have to be exercised as provided under the Act.
27. Despite being aware of the investigations by SASRA and the recommendations in the report, the appellant chose to proceed with its claim against the respondent as a dispute and not as a surcharge. The CT, exercising its jurisdiction under Part XIII in Settlement of Disputes, made its decision. It would now appear that the appellant wants to change its claim on appeal, using the present application, to come under Surcharge and not Settlement of Disputes. As stated above, that would amount to changing the jurisdiction under which the CT determined the claim, and that cannot be allowed since under either of the Part XIII or Part XIV, the appellate jurisdiction of this court is different.
28. Under Part XIII on Surcharge, this court exercises second appellate jurisdiction over the CT’s decision and is specific under section 74 of the Act, that the appeal is on points of law only while under Part XIV, this court’s jurisdiction over the CT’s decision is general, meaning it is on both points of law and fact, as provided for under section 81 of the Act and even though it is final.
29. The said sections provide as follows:
S. 74. (1) Any person aggrieved by an order of the Commissioner under section 73(1) may, within thirty days, appeal to the Tribunal.
(2) A party aggrieved by the decision of the Tribunal may within thirty days appeal to the High Court on matters of law.
S. 81. (1) Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:
Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.
(2) Upon the hearing of an appeal under this section, the High Court may:—
(a) confirm, set aside or vary the order in question;
(b) remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the court may deem fit to give;
(c) exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or
(d) make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.
(3) The decision of the High court on any appeal shall be final.
30. As was stated by the Court of Appeal in the Wanje v. Saikwa case (supra), additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. I find that in the present case, allowing the appellant to provide additional evidence would change its claim from one of a dispute to a surcharge. For the foregoing reasons, I find that the application herein has no merit and the same is dismissed with costs to the respondent.
31. Orders accordingly.
32. Judgment on the main appeal on 5th May 2026, since parties have filed submissions.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 20th day of April 2026
N/A for the Appellant.
N/A for the Respondent.
Ummu h/b for Amina: Court assistant
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E969 OF 2024
(Coram: Andayi W. F., J.)
TELEPOSTA SACCO SOCIETY LIMITED...........................................………APPELLANT
VERSUS
RICHARD W. THUKU…………………………………..……….…………………RESPONDENT
(Being an Appeal from the Judgment of the Co-operative Tribunal at Nairobi on 25th July 2024 in Co-operative Tribunal Claim No. 360 of 2018)
RULING
1. The appellant herein, Telepost Sacco Society Ltd, is dissatisfied with the judgment of the Co-operative Tribunal (CT) delivered on 25th July 2024 and has appealed that decision to this court through the memorandum of appeal dated 16th August 2024.
2. However, after the appeal was admitted for hearing and parties filed submissions, the appellant filed an application by way of notice of motion dated 8th July 2025 seeking orders that leave be granted to the appellant to adduce additional documentary evidence being a report by the Acting Chief Executive Officer of the Sacco Societies Regulatory Authority (SASRA) for consideration by this court in deciding the matter and the same be filed through a supplementary record of appeal and that the costs of the application be in the cause of the appeal.
3. The application is filed under section 1A,1B, 3A, and section 78A of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 42 Rules 27, 28, and 29, and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
4. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit sworn on 8th July 2025 by Maryanne Ndekei, the Chief Executive Officer of the appellant.
5. The grounds are that the respondent herein was the chairman of the board of the appellant sacco. SASRA, upon conducting investigations into the management and operations of the appellant, prepared a report that contains the grounds and reasons for the removal of the respondent as an official of the appellant Sacco. That, the report implicates the respondent in misfeasance during the period he was an official of the appellant, by taking loans without following due procedure and failing to repay, which the respondent had denied throughout the proceedings before the CT. The report thus clarifies the position regarding that issue.
6. The rest of the grounds are basically that the application meets the provisions for the grant of an order for adducing additional evidence as provided for in law.
7. The respondent has opposed the application through a replying affidavit sworn on August 6, 2025. He deposes that the application does not meet the threshold for introducing new evidence on appeal as required under Section 78(1)(d) of the Civil Procedure Act and under Orders 42, Rules 27, 28, and 29 of the Civil Procedure Rules.
8. Further, that, the applicant has failed to demonstrate that the intended evidence could not have been obtained with reasonable diligence for use at the trial, since the Report of the Sacco Societies Regulatory Authority (SASRA) dated February 2, 2017, was available to the applicant all along. Further, the evidence sought to be adduced is voluminous and would prejudice the respondent in responding to it, as it is intended to introduce new issues that were not part of the original dispute. Further, that, the report is not supported by evidence and/or documents, and it will not be subjected to cross-examination as would have been the case if produced before the CT.
9. The application was disposed of on the written submissions of learned counsels for both parties, which are considered in the analysis.
10. I have considered the application and the submissions made by learned counsels for the parties. Learned counsels for the parties have set out issues for determination, all of which can be summed up as one: whether the application meets the requirements for leave to adduce additional evidence on appeal.
11. Section 78(1)(d) of the Civil Procedure Act under which the application herein is filed provides as follows:
Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) …
(d) to take additional evidence or to require the evidence to be taken;
12. The provision is expounded in Order 42 Rule 27 of the Civil Procedure Rules as follows:
(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.
13. The courts have explained these provisions of the law for their meaning and purport as seen in the various authorities cited by learned counsels for the parties such as Kenya Electricity Transmission Company Limited v Onsongo & another (Environment and Land Appeal E028 of 2022) [2024] KEELC 4871 (KLR) (20 June 2024) (Ruling). In Wanje v Saikwa (1984) KLR 275 the Court of Appeal, Chesoni Ag JA, considering the said provisions, held thus;
“...this rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence."
14. The Supreme Court has also given guidance on the issue in the case of Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018) (Consolidated) [2018] KESC 62, where it stated that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:
a. 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 additional evidence.
b. It must be evidence relevant to the issues.
c. It must be evidence which is credible in the sense that it is capable of belief.
d. 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;
e. The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given.
f. The application to admit additional evidence must be brought without undue delay.
15. The Supreme Court went on to state that courts should be more stringent to allow a party to adduce additional evidence to re-open a case which has already been completed, on appeal.
16. The guidelines above are not exhaustive but they are sufficient to cover the issues raised in the present application.
17. Learned counsel for the appellant submits that the additional evidence is credible and relevant to the issues, it will most likely influence the case, the evidence could not have been produced at the time of the trial and the evidence will not prejudice the respondent.
18. Learned counsel for the respondent submits that the report sought to be produced is dated 2nd February 2017 and for that reason the appellant ought to have produced it before the CT.
19. Going by the six guidelines set out by the Supreme Court, even as they are not exhaustive, I find that the applicant successfully satisfies four of them, namely: that the evidence is relevant to the issues; is credible in the sense that it is capable of belief; if given, it would probably influence the result of the case, even if nit in a decisive manner; and the evidence sought to be given is annexed to the affidavit supporting the application.
20. However, the requirements that even after the exercise of due diligence, the evidence was not within the knowledge of, or could not have been produced at the time of the claim, and that the application to admit additional evidence was brought without undue delay have not been met.
21. I have considered the proceedings before the CT and I can see that during cross-examination of PW 1, Maryanne Wanjuku Gikenye for the appellant, referred to the report when she said that, “… reversals were as per SASRA investigations – copy of findings.” This, to me, means that the appellant was well aware of and had the report. It is interesting, though, that the report is not mentioned at all in the witness statement of Maryanne Ndekei, which PW 1 adopted as her evidence in chief before the CT. I suppose that Maryanne Ndekei and Maryanne Wanjuku Gikenye is the same person, the Chief Executive Officer of the appellant.
22. Again, it cannot be the case that the appellant could not have had the report yet it was the basis of its claim against the respondent as is now evident from the present application.
23. On the issue of delay, I find that this application, coming after the parties in this appeal had filed submissions for the disposal of the appeal, is clearly an afterthought. It is intended to fill in lacunae in the appellant’s claim that the CT pointed out in its judgment, that the appellant had not adduced sufficient evidence to prove the claim.
24. Considering the claim dated 26th July 2018 as filed before the CT, it is presented as a claim for recovery of various loans advanced to the respondent by the appellant, and the appellant was seeking recovery thereof. Such a claim falls under Part XIV of the Act on Settlement of Disputes. The CT proceeded as such and made its decision thereon.
25. However, now looking at the present application and the report sought to be introduced as additional evidence, it turns out that in fact, the claim also fell under Part XIII of the Act on Surcharge.
26. Recovery proceedings under these two parts, including the appellate jurisdiction of this court, are different. The jurisdiction of the CT under Part XIII for Surcharge is appellate, whereas the jurisdiction of the CT under Part XIV on the Settlement of Disputes is original, as would be before a trial court. The two jurisdictions are not interchangeable and have to be exercised as provided under the Act.
27. Despite being aware of the investigations by SASRA and the recommendations in the report, the appellant chose to proceed with its claim against the respondent as a dispute and not as a surcharge. The CT, exercising its jurisdiction under Part XIII in Settlement of Disputes, made its decision. It would now appear that the appellant wants to change its claim on appeal, using the present application, to come under Surcharge and not Settlement of Disputes. As stated above, that would amount to changing the jurisdiction under which the CT determined the claim, and that cannot be allowed since under either of the Part XIII or Part XIV, the appellate jurisdiction of this court is different.
28. Under Part XIII on Surcharge, this court exercises second appellate jurisdiction over the CT’s decision and is specific under section 74 of the Act, that the appeal is on points of law only while under Part XIV, this court’s jurisdiction over the CT’s decision is general, meaning it is on both points of law and fact, as provided for under section 81 of the Act and even though it is final.
29. The said sections provide as follows:
S. 74. (1) Any person aggrieved by an order of the Commissioner under section 73(1) may, within thirty days, appeal to the Tribunal.
(2) A party aggrieved by the decision of the Tribunal may within thirty days appeal to the High Court on matters of law.
S. 81. (1) Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:
Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.
(2) Upon the hearing of an appeal under this section, the High Court may:—
(a) confirm, set aside or vary the order in question;
(b) remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the court may deem fit to give;
(c) exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or
(d) make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.
(3) The decision of the High court on any appeal shall be final.
30. As was stated by the Court of Appeal in the Wanje v. Saikwa case (supra), additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. I find that in the present case, allowing the appellant to provide additional evidence would change its claim from one of a dispute to a surcharge. For the foregoing reasons, I find that the application herein has no merit and the same is dismissed with costs to the respondent.
31. Orders accordingly.
32. Judgment on the main appeal on 5th May 2026, since parties have filed submissions.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 20th day of April 2026
N/A for the Appellant.
N/A for the Respondent.
Ummu h/b for Amina: Court assistant