Freedom Limited v Mbarak
The bottom line
#Supreme Court dismisses attempt to add new evidence after losing at Court of Appeal.
What this practically means
#The Supreme Court refused to allow a party to introduce new documents in an appeal over a land dispute. The court said the documents were available earlier and could have been obtained before the trial. Allowing them would let the party fix weaknesses in their case after losing. The appeal can proceed without the new evidence.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the threshold for admission of additional evidence under Section 20 of the Supreme Court Act and the principles in Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others
Key legal issues
#Whether the applicant met the threshold for admission of additional evidence under Section 20 of the Supreme Court Act and the Mohamed Abdi Mahamud principles.
The applicant did not meet the threshold because the evidence was available and could have been obtained with reasonable diligence, it is intended to fill gaps identified by the Court of Appeal, and its relevance to the appeal is doubtful.
The court found that the applicant had not demonstrated that the additional evidence could not have been obtained with reasonable diligence for use at the trial. The documents were supplied within a short time of the applicant writing to the relevant departments, confirming they were always available. The applicant admitted the evidence was in direct answer to questions raised by the Court of Appeal, which the court held is an impermissible attempt to fill gaps or patch up weak points in the unsuccessful party's case. The court also doubted the relevance of the evidence to the appeal, noting that the appeal concerns whether the Court of Appeal erred in its determination based on the material already on record.
Legal principles established
#- Additional evidence on appeal is allowed only if it could not have been obtained earlier with reasonable diligence.
- A losing party cannot use new evidence to fill gaps or patch up weak points in their case.
- The evidence must be directly relevant to the appeal and not merely answer questions raised by the lower court.
- The party seeking to adduce new evidence bears the burden of proving it meets the strict legal criteria.
- Courts will not admit evidence that could have been obtained by a simple letter to a government department.
Court orders
#- 1.The Notice of Motion application dated 28th August, 2024 be and is hereby dismissed.
- 2.The Applicant shall bear the costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Sections 3A and 20 of the Supreme Court Act, Cap 9B, Rules 3(2), 26 and 31 of the Supreme Court Rules, 2020
Relief refused
#Leave to adduce additional evidence (documents, plans, correspondence, survey report)
The evidence does not meet the threshold under Section 20 of the Supreme Court Act and the Mohamed Abdi Mahamud principles; it was available and could have been obtained with reasonable diligence; it is intended to fill gaps in the applicant's case.
Costs
The Applicant shall bear the costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Notice of Motion application dated 28th August, 2024 be and is hereby dismissed.
The Applicant shall bear the costs of this application.
the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal
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
Key timeline
#Practical implications
#Strict threshold for new evidence
When handling appeals in land cases, ensure you have gathered all relevant documents before trial. The Supreme Court will not tolerate attempts to introduce evidence after losing, especially if a simple request to a government department would have produced it earlier. Prepare your case thoroughly at the first instance.
Finality in land disputes
Businesses involved in land litigation must present all evidence at the trial stage. Do not rely on the possibility of adding new evidence on appeal. The courts expect you to exercise due diligence to obtain all documents before the original hearing. This ruling reinforces that appeals are not a second chance to gather evidence.
Gather evidence early
If you are in a land ownership case, collect all documents from the Lands Ministry or other authorities before the trial starts. Waiting until after you lose the case to try to get those documents will not help you. The Supreme Court has made it clear that such late attempts will be rejected.
Frequently asked questions
#Can I bring new evidence to the Supreme Court in Kenya after losing my case?+
Only in very limited circumstances. You must show the evidence could not have been found earlier with reasonable effort, and it is not just to fix weaknesses in your case. The Supreme Court strictly follows these rules, as shown in this ruling.
What happens if I try to add evidence after losing at the Court of Appeal in Kenya?+
The Supreme Court will likely dismiss your application unless you prove the evidence was unavailable before. In this case, the court rejected the application because the documents were easily obtainable from the Ministry of Lands and were meant to fill gaps in the applicant's case.
How do I know if my additional evidence will be accepted by the Supreme Court in Kenya?+
Check the criteria from the Mohamed Abdi Mahamud case: the evidence must be directly relevant, could not have been obtained with reasonable diligence, and must not be used to fill gaps. If you could have gotten it earlier by a simple request, it will be rejected.
What is the cost of losing an application to add new evidence in the Supreme Court in Kenya?+
You will be ordered to pay the other party's costs. In this case, the applicant had to bear the costs of the application. This adds to the financial burden of an already lost case.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Freedom Limited v Mbarak", Case Analysis (2024). Petition (Application) E009 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/76/eng@2024-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.