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Court of AppealDismissedCourt of Appeal application dated 15th April 2024 arising from an appeal against High Court Petition (Nyahururu)· [2025] KECA 267 (KLR)

Kigo v Attorney General. & 4 others (Civil Appeal (Application) E561 of 2023) [2025] KECA 267 (KLR)

Court of Appeal
21 February 2025
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let an appellant add fresh evidence of debts, property sales and health issues to boost a damages award on appeal.

What this practically means

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Executive summary

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This was a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Asike-Makhandia, Ali-Aroni and L. Achode, JJAA) delivered on 21st February 2025 on a notice of motion dated 15th April 2024 seeking leave to adduce new and fresh evidence on an appeal against a High Court judgment at Nyahururu. The High Court had allowed the applicant's constitutional petition, holding that the respondents' impounding of his lorry and exhibits - after both the magistrate's court and the High Court had ordered their release - amounted to deliberate disobedience of lawful orders and a breach of Articles 73(1) and (2) of the Constitution, and had awarded him Kshs. 600,000 as general damages and Kshs. 150,000 as exemplary damages. The applicant, finding the awards inordinately low, sought to introduce on appeal documents evidencing sale of his properties to settle bank debts, loan defaults, and medical reports on deteriorating health. The Court framed a single issue: whether the applicant had made a case to introduce additional evidence on appeal under rule 31(1)(b) of the Court of Appeal Rules, 2022. Applying Wanje vs. A. K. Saikwa, Dorothy Nelima Wafula, Attorney General vs. Torino Enterprises and the Supreme Court's principles in Mohammed Abdi Mohamud, the Court held that the proposed evidence was not directly related to the pleadings, amounted to an unpleaded fresh claim in special damages, sought to patch gaps in a weak case, and concerned post-judgment events, whose admission would open a Pandora's box and prolong litigation. The application was dismissed with costs to the respondents. The underlying appeal remains pending.

Key legal issues

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Whether the applicant satisfied the criteria for leave to adduce additional evidence on appeal under rule 31(b) of the Court of Appeal Rules, 2022

Holding

The application failed: the proposed evidence of debts, property sales and deteriorating health was not before the trial court and was not directly related to the pleaded claim; it amounted to a fresh unpleaded claim in special damages and to events post-judgment, which the Court will not admit.

Reasoning

The Court applied the settled principles from Wanje vs. A. K. Saikwa, Dorothy Nelima Wafula and the Supreme Court's decision in Mohammed Abdi Mohamud requiring that additional evidence be directly relevant, credible, obtainable only with reasonable diligence, influential on the result, and not a device to fill gaps or patch weak points. The applicant's pleadings at the High Court were limited to general and exemplary damages; the new material was ascertainable, post-judgment, or in the nature of special damages never pleaded or tested at trial, and its admission would breach the maxim that the immediate, not the remote, cause is regarded.

p. 6

Legal principles established

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  • Rule 31(b) of the Court of Appeal Rules, 2022 (formerly rule 29) is not a vehicle for an unsuccessful litigant to patch up weak points or fill omissions in his case on appeal; additional evidence must be directly relevant, could not have been obtained with reasonable diligence, and must not introduce a fresh claim such as unpleaded special damages.
  • Events occurring after judgment cannot be treated as new and additional evidence on appeal, as this would perpetuate litigation indefinitely.

Court orders

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  1. 1.Dismissal of the notice of motion dated 15th April 2024 seeking leave to adduce new and fresh evidence
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 51, rule 1
  • Court of Appeal Rules, 2022Rules 31(1)(b) and 107
  • Evidence ActSections 107 to 109
  • Standards ActNot specified (7 counts preferred under it)
  • Constitution of KenyaArticles 73(1) and (2)

Cases cited (13)

  • Safe Cargo Limited vs. Embakasi Properties Limited & 2 Others
    [2019] eKLR
  • Republic vs. Ali Babitu Kololo
    [2017] eKLR
  • Raila Odinga & 5 Others vs. I.E.B.C. and 3 Others
    [2013] eKLR
  • Rheir Shipping Co. SA vs Edmunds
    [1955] 1 WLR 948
  • Hellen Wangari Wangechi vs. Carumera Muthini Gathua
    [2005] eKLR
  • Nayan Mansukhal Salva vs. Hanikssa Nayan Salva
    [2019] eKLR
  • Fiber Link Limited vs. Star Television Production Limited
    [2015] eKLR
  • National Cereals and Produce Board vs. Erad Supplies and General Contracts Limited
    Civil Appeal No. 9 of 2012
  • The Administrator, HH The Aga Khan Platinum Jubilee Hospital vs. Munyambu
    [1985] KLR 127
  • Attorney General vs. Torino Enterprises Limited
    [2019] eKLR
  • Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen and Paul Fredrick Nelson
    [2017] eKLR
  • Wanje vs. A. K. Saikwa
    [1984] eKLR
  • Mohammed Abdi Mohamud vs. Ahmed Abdullahi Mohamed & 3 Others
    [2018] eKLR
On appeal from
High Court of Kenya at Nyahururu
Petition dated 6th June 2019 (arising from Misc. Criminal Application No. 7 of 2019; underlying Criminal Case No. 1424 of 2018, Chief Magistrate's Court at Nyahururu)
Jurisdiction invoked
Rule 31(1) of the Court of Appeal Rules, 2022, together with sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kigo v Attorney General. & 4 others (Civil Appeal (Application) E561 of 2023) [2025] KECA 267 (KLR)", Case Analysis (2025). Court of Appeal application dated 15th April 2024 arising from an appeal against High Court Petition (Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/267/eng@2025-02-21

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