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Supreme CourtDismissedPetition 17 (E021) & 24 (E027) of 2022 (Consolidated)

Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 3 others

Supreme Court of Kenya
16 June 2023
1,310 words in judgment
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AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses bid to add new evidence in Moi estate case, upholding strict rules for appeals.

What this practically means

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The Supreme Court rejected an application by David Chelugui to introduce new evidence in an appeal about the estate of former President Daniel Moi. The court said the proposed evidence—land reports, a book, and a human rights report—was not directly relevant. The applicant knew about the evidence, which was in the public domain, and failed to explain why it was not presented earlier. The court stressed that additional evidence is allowed only rarely and with caution.

Executive summary

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This ruling by the Supreme Court of Kenya (Koome CJ, Mwilu DCJ, Ibrahim, Wanjala, Njoki Ndungu, Lenaola, and Ouko SCJJ) dismissed an application by David K Chelugui (the applicant/respondent) seeking leave to adduce additional evidence in an appeal concerning the estate of former President Daniel Toroitich Arap Moi. The applicant sought to introduce three land reports on irregular allocation of public land, a book on corruption, a Kenya National Human Rights Commission report, and judgments from the Malcolm Bell case. The court held that the applicant failed to satisfy the conditions for admission of additional evidence as established under section 20 of the Supreme Court Act, rule 26 of the Supreme Court Rules, 2020, and the principles in Hon Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others. The court found that the proposed evidence was not directly relevant to the matter, the applicant had been aware of it (as it was in the public domain), and the applicant did not sufficiently explain its relevance. The court noted the unusual nature of the application, where the applicant sought to perfect the lower courts' judgments rather than support his own appeal. The application was dismissed with costs to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has satisfied the conditions for leave to adduce additional evidence on appeal

Key legal issues

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01

Whether the applicant satisfied the conditions for leave to adduce additional evidence on appeal to the Supreme Court.

Holding

The applicant failed to satisfy the conditions; the additional evidence sought was not directly relevant, the applicant was aware of it and it was in the public domain, and the applicant did not sufficiently explain its relevance.

Reasoning

The court applied the principles from Hon Mohamed Abdi Mahamud (supra) and found that the additional evidence—land reports, a book, a human rights report, and judgments—was not directly relevant to the matter. The applicant admitted the evidence was in the public domain and had not explained why it was not adduced earlier. The court noted the application was unusual as the applicant sought to perfect the lower courts' judgments rather than support his own appeal. None of the conditions for grant of leave were satisfied.

Legal principles established

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  • Applicants must strictly comply with section 20 of the Supreme Court Act and rule 26 of the Supreme Court Rules when seeking to adduce additional evidence.
  • The proposed evidence must be directly relevant to the issues in the appeal.
  • If the evidence was in the public domain and known to the applicant, it will not be admitted unless a clear explanation for its earlier omission is given.
  • Additional evidence cannot be used to perfect the lower courts' judgments; it must support the applicant's own appeal.
  • The court will allow additional evidence sparingly, on a case-by-case basis, and with abundant caution.

Court orders

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  1. 1.The motion dated January 13, 2023 and filed on January 18, 2023, is hereby dismissed
  2. 2.The costs of this application shall be borne by the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M K KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P M MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Leave to adduce additional evidence

The additional evidence sought to be introduced is not directly relevant to the matter before court; the applicant has been aware of the evidence which is in the public domain; the applicant has not sufficiently explained its relevance; none of the conditions for grant of leave have been satisfied.

Costs

The costs of this application shall be borne by the applicant.

Quotable passages

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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 applicant is duty bound to satisfy all the elements under the provisions of section 20 of the Supreme Court Act, rule 26 of the Supreme Court Rules, 2020 (both of which have not been cited in the application) and the principles set out in this court's decision in Hon Mohamed Abdi Mahamud (supra)
p. 4 Standard for additional evidence
this court in Hon Mohamed Abdi Mahamud (supra) emphasized that even with the application of the set principles, the court will only allow additional evidence on a case-by-case basis and even then, sparingly with abundant caution
p. 4 Caution in allowing additional evidence
the additional evidence sought to be introduced, namely: three land reports on irregular allocation of public land; a book titled 'Kenya Looters and Grabbers: 54 years of Corruption and Plunder by the Elites 1963 -2017, published in 2018; a Kenya National Human Rights Commission Report published in 2006; Judgments and rulings in the Malcolm Bell case concerning the land on which Moi High School Kabarak is situate, is not directly relevant to the matter before court
p. 4 Irrelevance of proposed additional evidence
The motion dated January 13, 2023 and filed on January 18, 2023, is hereby dismissed
p. 4 Final order dismissing application
The costs of this application shall be borne by the applicant
p. 4 Costs order

Key timeline

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2023-01-18
David K Chelugui filed a motion in the Supreme Court seeking leave to adduce additional evidence in the Moi estate appeal.
2023 (exact date not provided in analysis)
The Supreme Court dismissed the motion with costs, ruling the applicant failed to satisfy the conditions for additional evidence.

Practical implications

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For lawyers

Strict test for additional evidence

When advising clients on Supreme Court appeals, ensure all relevant evidence is presented at the trial and lower appellate levels. To admit new evidence, you must satisfy section 20 of the Supreme Court Act, rule 26, and the Mahamud principles. Prepare a detailed affidavit explaining why the evidence was not available earlier and how it is directly relevant to the appeal. This ruling makes clear that the court will not allow evidence that was in the public domain or used to perfect lower court judgments.

For businesses

Evidence strategy in high-stakes litigation

If your business is involved in a land or corruption case that may reach the Supreme Court, gather all relevant evidence—reports, judgments, books—at the earliest stage. Do not assume you can introduce public reports later. The court will scrutinise whether the evidence was available and why it was not presented earlier. This case shows that even seemingly powerful evidence will be rejected if it fails the strict admissibility test. Prepare your case thoroughly from the start.

For individuals

Know your evidence deadlines

If you have a personal legal dispute, remember that you must present all your evidence at the trial court. You cannot wait until the appeal to introduce new documents or reports. The Supreme Court in this case rejected evidence that was already public and known to the applicant. To avoid losing your chance, gather and submit all relevant evidence as early as possible. If you discover new evidence later, you must promptly explain why you could not have obtained it earlier.

Frequently asked questions

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Can I introduce new evidence in the Supreme Court of Kenya?+

Yes, but it is very difficult. You must satisfy strict conditions: the evidence must be directly relevant to the appeal, you must explain why it was not available earlier, and you must comply with section 20 of the Supreme Court Act and rule 26 of the Supreme Court Rules. The court allows it sparingly and with caution.

What is the test for additional evidence in the Kenyan Supreme Court?+

The test comes from the case Hon Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed. You must show the evidence is directly relevant, was not available at the time of the lower court hearing, or if available, explain why it was not adduced. The court will also consider whether the evidence supports your own appeal, not just attacks the lower court's judgment.

Why was the Chelugui v Moi estate application for additional evidence dismissed in Kenya?+

The Supreme Court dismissed it because the proposed evidence—land reports, a book, and a human rights report—was not directly relevant to the appeal. The applicant admitted the evidence was in the public domain and failed to explain why it was not presented earlier. The court also noted the unusual attempt to perfect the lower courts' judgments rather than support the applicant's own case.

What happens if I lose a case and want to add new evidence on appeal in Kenya?+

The appellate court will rarely allow new evidence. You must apply for leave and meet strict criteria: the evidence must be crucial, not previously available despite reasonable diligence, and not likely to have been obtained earlier. The Supreme Court in this case reinforced that the bar is high, especially for evidence that was public knowledge.

Cite this brief

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Cite this brief

Caselaw, "Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 3 others", Case Analysis (2023). Petition 17 (E021) & 24 (E027) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/59/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.