Samuru Gaturo Farmers Co-operative Society Limited v Chief Magistrate’s Court At Thika & 15 others [2016] KECA 435 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a co-operative society to add new evidence on appeal because the documents were only discovered later, credible, and unopposed.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the Rule 29 criteria for admission of additional evidence
The application satisfied all three criteria: the evidence was not in the applicant's possession or knowledge when the record was filed, it was relevant and apparently credible documentary evidence bearing on the transfer of the suit property, and the respondents consented to its admission.
The court adopted the Ladd v Marshall principles as stated by Chesoni, Ag JA in Mzee Wanjie v A.K. Saikwa. It found the applicant demonstrated lack of possession or knowledge of the documents at the time of filing the record and at the High Court. The evidence, showing the suit property had been transferred despite interim orders, was relevant to the appeal's outcome and was documentary and apparently credible. The respondents' non-opposition reinforced admission.
The scope and caution attaching to the appellate power to receive further evidence
The power under Rule 29 is discretionary and must be exercised sparingly; it exists not to let a party make out a fresh case or fill gaps in the evidence on appeal.
Quoting Chesoni, Ag JA, the court restated that the rule is not intended to import fresh evidence for an unsuccessful litigant or to patch up weak points, since there would be no end to litigation if parties could improve their cases by further evidence on appeal. The conditions of reasonable diligence, importance to the result, and apparent credibility guard against this. The court applied, and found satisfied, those conditions.
Legal principles established
#- Leave to adduce additional evidence on appeal under Rule 29 is granted only where the evidence could not with reasonable diligence have been obtained before or during the High Court hearing, where it would be likely to affect the outcome, and where it is apparently credible.
- The power to admit additional evidence on appeal must be exercised sparingly and with great caution, and is not a device for a losing litigant to patch up weaknesses in its case.
Court orders
#- 1.The notice of motion dated 29th January, 2016 is allowed
- 2.The applicant shall file and serve on the respondents, within 14 days from the date of the ruling, a supplementary record comprising the documents listed in prayer number 1 of the notice of motion
- 3.The costs of the application shall abide by the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HC Const Appln No. 30 of 2009
- Jurisdiction invoked
- Rules 29 and 42 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nduati & another v Makini & another (Environment and Land Case 528 of 2011) [2026] KEELC 329 (KLR)[2026] KEELC 329 (KLR)22 Jan 2026applied
- Local Authorities Pensions Trust (Laptrust) v Chairman Retirement Benefits Appeal Tribunal & 2 others [2019] KECA 735 (KLR)[2019] KECA 735 (KLR)10 May 2019followed
Cite this brief
#Cite this brief
Caselaw, "Samuru Gaturo Farmers Co-operative Society Limited v Chief Magistrate’s Court At Thika & 15 others [2016] KECA 435 (KLR)", Case Analysis (2016). Civil Appeal (Application) No. 300 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/435/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.