Kigo v Attorney General. & 4 others (Civil Appeal (Application) E561 of 2023) [2025] KECA 267 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the notice of motion dated 15th April 2024 seeking leave to adduce new and fresh evidence
- 2.Costs of the application to the respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njambi v Waweru (Environment and Land Case 719 of 2016) [2025] KEELC 6634 (KLR)[2025] KEELC 6634 (KLR)2 Oct 2025
Cite this brief
#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.