Garama v Karisa & 3 others
The bottom line
#You cannot introduce new evidence on appeal if you had it all along.
What this practically means
#The Supreme Court of Kenya dismissed an attempt by two parties to introduce a polling station diary as new evidence during an appeal. The court found they had the diary during the original trial and failed to produce it. Introducing it now was seen as an attempt to fix weaknesses in their case, which the court refused to allow. The ruling reinforces that parties must present all relevant evidence at trial, not hold it back for later.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd and 3rd respondents should be granted leave to adduce new and additional evidence.
- 2.Whether the 1st respondent's submissions should be struck out for non-compliance with the Deputy Registrar's directions and the Supreme Court (General) Practice Directions, 2020.
Key legal issues
#Whether the 2nd and 3rd respondents satisfied the conditions for admission of additional evidence under section 20 of the Supreme Court Act and the principles in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others.
The application failed because the applicants had prior knowledge and actual possession of the evidence during the trial and did not explain why it was not produced earlier; the application was an attempt to fill omissions.
The court applied the principles from Mohamed Abdi Mahamud, particularly that additional evidence must not be used to fill gaps or patch weak points. The 2nd and 3rd respondents admitted they had custody of the polling station diary during the trial and the trial court also had it. They did not explain why it was not produced earlier. The court found the application was intended to remedy their failure to adduce the evidence at the proper time, which is impermissible.
Whether the 1st respondent's submissions should be struck out for non-compliance with the Deputy Registrar's directions and the Supreme Court (General) Practice Directions, 2020.
The 1st respondent's submissions on the preliminary objection were struck out for non-compliance, but the submissions on the appeal were admitted as they go to the root of the dispute.
The Deputy Registrar directed that parties file composite submissions addressing both the appeal and the preliminary objection. The 1st respondent filed two separate sets of submissions totaling 26 pages, exceeding the 15-page limit. The court found the explanation 'escapist' and struck out the preliminary objection submissions, but admitted the appeal submissions because they are central to the dispute. The court also noted the 1st respondent could still argue the preliminary objection orally at the hearing.
Legal principles established
#- A party who had evidence during trial cannot later introduce it on appeal to fill gaps.
- New evidence on appeal must not be used to patch weak points in a case.
- Parties must comply with court directions on filing submissions or risk having them struck out.
- The Supreme Court can strike out non-compliant submissions but may admit those central to the dispute.
- Each party bears its own costs unless there is a compelling reason otherwise.
Court orders
#- 1.The notice of motion dated October 13, 2023 is hereby dismissed.
- 2.The notice of motion dated October 25, 2023 is hereby partially allowed.
- 3.The 1st respondent’s submissions dated October 12, 2023 in respect of the preliminary objection are hereby struck out.
- 4.Each party shall bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Election Appeal No E001 of 2023
- Jurisdiction invoked
- Section 20 of the Supreme Court Act, 2011 and rule 26 of the Supreme Court Rules, 2020
Relief refused
#Leave to adduce new and additional evidence (polling station diary for Mapimo Youth Polytechnic polling station 1 of 6)
The 2nd and 3rd respondents had prior knowledge and actual possession of the evidence during the trial and failed to produce it; the application is intended to fill omissions or patch up weak points.
Costs
Each party shall bear its own costs.
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.
Having found that the 2nd and 3rd respondents not only had prior knowledge of, but were in actual possession of the additional or the so- called new evidence, it is our considered view that their attempt to adduce additional or new evidence before this court is intended to fill up omissions or patch up the weak points in their case which action, we refuse to countenance.
Directions are given to ensure orderly conduct of proceedings and it is not for parties to choose which ones to comply with and which ones to disregard.
Consequently, as the submissions on the appeal go to the root of the dispute before us, we shall admit them but the 1st respondent’s submission in regard to the preliminary objection, filed outside the directions of the court, are hereby struck out.
Key timeline
#Practical implications
#Evidence strategy at trial is final
Ensure all available evidence is presented at trial. The Supreme Court will not allow you to introduce evidence you possessed during trial on appeal. This ruling closes a common loophole and requires you to thoroughly prepare your case from the start. Failure to do so may result in dismissal of your appeal on that ground.
Comply with court directions strictly
If you are involved in litigation, follow all court directions on filing documents. The court struck out submissions that did not comply with page limits and format requirements. This means non-compliance can weaken your case. Ensure your legal team adheres to procedural rules to avoid losing the right to present arguments.
Present all evidence at trial
If you are a party in a case, you must bring all relevant evidence during the trial. You cannot save documents or other proof for a later appeal. The court will reject such attempts as an effort to fix mistakes. Work closely with your lawyer to ensure nothing is left out at the first hearing.
Frequently asked questions
#Can I introduce new evidence in the Supreme Court of Kenya if I forgot to present it at trial?+
No, not if you had the evidence during the trial. The Supreme Court will refuse to admit it if you knew about it and had it in your possession. You must explain why it was not produced earlier, and the court will reject attempts to fill gaps in your case.
What happens if I don't follow court directions on filing submissions in Kenya?+
The court may strike out your submissions, meaning they will not be considered. In this case, the court struck out submissions that exceeded page limits and were filed separately instead of as a composite document. You may still argue orally, but your written arguments are lost.
What is the Mohamed Abdi Mahamud principle in Kenyan law?+
It is a legal principle from a Supreme Court case that sets conditions for admitting new evidence on appeal. The evidence must not have been available at trial, must be credible, and must not be used to fill omissions or patch weak points. This ruling applied that principle strictly.
Can I appeal a Supreme Court decision on new evidence in Kenya?+
No, the Supreme Court is the highest court in Kenya. Its decisions on procedural matters like admitting new evidence are final. You cannot appeal further. The only remedy is to ensure you present all evidence at the trial stage.
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.
- Criticos v Attorney General & 7 others (Civil Application 276 of 2020) [2026] KECA 249 (KLR)[2026] KECA 249 (KLR)13 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Garama v Karisa & 3 others", Case Analysis (2024). Petition E020 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/1/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.