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Court of AppealDismissedCivil Application (Notice of Motion dated 7th July 2022) in the appeal from Environment and Land Court Civil Suit No. 263 of 2013

Wandaka & 2 others v Elizabeth Wambui Mwangi (Civil Appeal 36 of 2019) [2024] KECA 1315 (KLR)

Court of Appeal
27 September 2024
2,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to let losing land litigants introduce 'new' evidence on appeal they could have gathered during the trial years earlier.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nakuru (Warsame, Mativo and Gachoka, JJ.A) determines a Notice of Motion dated 7th July 2022 in which the applicants, whose suit over parcel Gilgil/Karunga Block 5/36 (Mukinye) was dismissed by Sila J of the Environment and Land Court on 7th March 2019, sought leave under Rule 29(1) of the Court of Appeal Rules (now Rule 31 of the 2022 Rules) to adduce additional evidence on appeal, namely an affidavit by the 1st applicant together with a letter from the Department of Trade, Industrialization, Co-operative & Tourism confirming the membership records of Mukinye Farmers' Co-operative Society. The court restated the Ladd v Marshall principles as adopted in Mzee Wanje v Saikwa and the guidelines in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad, holding that a threshold condition is that the evidence be 'new' - neither adduced at trial nor obtainable with reasonable diligence. The 1st applicant's own admission that the trial court had rejected a request to adduce the same evidence established that it was available at trial. The confirmation letter was obtained over three years after judgment and over nine years after filing suit, with no evidence of when it was requested, demonstrating a lack of due diligence. The court held that parties may not fill lacunae in their case at the appellate stage, dismissed the application, and awarded costs to the respondent.

Key legal issues

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01

Whether the evidence sought to be adduced on appeal was 'new' evidence

Holding

The evidence was not new: the 1st applicant admitted that the trial court had rejected a request to adduce the same evidence, showing it was available at trial

Reasoning

The 1st applicant admitted in his supplementary affidavit that his request to adduce the evidence after the close of the appellants' case was rejected by the trial Judge in 2019. That admission, together with the fact that the applicants had sought the trial court's leave to adduce the evidence, established that the evidence was actually available and therefore could not be characterised as new.

p. 3
02

Whether the applicants exercised due diligence in obtaining the evidence

Holding

The applicants failed to exercise due diligence; the information from the co-operative department could have been sought before or during the trial

Reasoning

The applicants knew from the outset of their claim that the ballot issued by Mukinye Farmers' Cooperative Society was central, yet they never sought confirmation of the society's membership records from the relevant government department before or during trial. The letter confirming the records was obtained over three years after judgment and over nine years after filing suit, and no evidence showed when, or whether, the information was requested.

p. 3
03

Whether the application satisfied the Mohamed Abdi Mahamud guidelines and the Ladd v Marshall principles

Holding

The application did not fall within the ambit of the Supreme Court's guidelines and the discretion was declined

Reasoning

Applying the Ladd v Marshall principles as restated in Mzee Wanje v Saikwa and the guidelines in Mohamed Abdi Mahamud, the court found the evidence neither new nor obtained with due diligence, and not capable of influencing the result since the trial court had already considered the society's official records, found the suit time-barred and found the respondent an innocent purchaser for value.

p. 4

Legal principles established

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  • Before admitting additional evidence on appeal, the applicant must first demonstrate that the evidence is 'new' in that it was not adduced at trial and could not have been adduced despite reasonable diligence
  • Parties cannot fill gaps or patch up weaknesses in their case at the appellate stage
  • The burden lies on the applicant for additional evidence to show the evidence was not available at trial and could not be obtained with due diligence

Court orders

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  1. 1.The applicants' Notice of Motion dated 7th July 2022 seeking leave to adduce additional evidence is dismissed with costs to the respondent
On appeal from
Environment and Land Court at Nakuru
Civil Suit No. 263 of 2013
Jurisdiction invoked
Rule 29(1) of the Court of Appeal Rules (now Rule 31 of the Court of Appeal Rules, 2022)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wandaka & 2 others v Elizabeth Wambui Mwangi (Civil Appeal 36 of 2019) [2024] KECA 1315 (KLR)", Case Analysis (2024). Civil Application (Notice of Motion dated 7th July 2022) in the appeal from Environment and Land Court Civil Suit No. 263 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1315/eng@2024-09-27

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