Kigonyo & another v Kiambu Dandora Farmers Co. Ltd & 4 others (Civil Application E080 of 2023) [2023] KECA 829 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land trial, ruling that parties cannot introduce new evidence after closing their case without formally asking to re-open it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal against the ELC ruling declining leave to file further evidence after closure of their case
- 2.Whether the intended appeal, if successful, would be rendered nugatory absent stay
- 3.Whether stay of further proceedings in the ELC should issue under rule 5(2)(b)
Key legal issues
#Twin principles for stay under rule 5(2)(b)
The applicants failed the first limb; the Court did not consider the second limb.
The Court restated the twin requirements: an arguable appeal and nugatory-ness absent stay. Examining the grounds of the intended appeal against the impugned ruling, it found no ground deserving inquiry that would satisfy the arguability threshold as contemplated in University of Nairobi vs Ricatti Business of East Africa, and so declined to examine the second limb.
Procedure for adducing further evidence after closure of a party's case
The applicants' attempt to introduce documents midstream, without seeking to re-open their case, was unprocedural and undermined the arguability of the intended appeal.
The Court noted that the applicants closed their case after the 1st applicant testified on May 24, 2022, then sought leave to file further evidence and documents while the defence hearing was ongoing. The ELC had correctly observed that a party who had closed his case and not sought re-opening could not be allowed to produce additional evidence; the Court found the grounds advanced did not merit inquiry.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay - the twin principles.
- A party cannot obtain leave to introduce additional evidence after closing its case without first seeking an order to re-open the case; introducing evidence midstream during the defence hearing is unprocedural.
Court orders
#- 1.The applicants' Notice of Motion dated February 28, 2023 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Suit No E092 of 2020 (ruling dated September 8, 2022)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)
Relief refused
#Stay of further proceedings in the ELC pending the intended appeal
The applicants have no arguable appeal; no single ground satisfied the first limb of the twin principle
Costs
The Motion was dismissed with costs to the 1st respondent.
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.
for an applicant to merit stay orders pursuant to rule 5(2) (b) of the Court of Appeal Rules pending appeal, he or she must demonstrate to the satisfaction of the Court that he or she has an arguable appeal; and that the appeal (or intended appeal as the case may be), if successful, would be rendered nugatory absent stay.
Simply put, the applicants have no arguable appeal.
we form the view that the applicants' Motion fails and is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#Typographical error in the judgment: 'that would suficient to satisfy' appears to omit 'be'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigonyo & another v Kiambu Dandora Farmers Co. Ltd & 4 others (Civil Application E080 of 2023) [2023] KECA 829 (KLR)", Case Analysis (2023). Civil Application No. E230 of 2023 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/829/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.