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Court of AppealDismissedCivil Appeal No. 413 of 2019 (Application dated 24th September 2019)

Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR)

Court of Appeal of Kenya
7 March 2025
DMD. K. MusingaJMJamila MohammedGOG. V. Odunga
2,508 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let parties add new evidence on appeal because they never explained why they didn't get it earlier.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Mohammed and Odunga, JJAA) dated 7th March 2025 on a notice of motion dated 24th September 2019 by Naomi Njeri Gachuki and Salome Nyambura Kimani, applicants in Civil Appeal No. 413 of 2019, seeking leave to adduce additional evidence on appeal. The underlying dispute concerns a succession matter in which the High Court (Ougo, J.) on 30th May 2019 dismissed their application to revoke a grant relating to the estate of Ngondu Mugo, the central issue being the validity of a Will dated 28th April 2008. The applicants sought to introduce a medical report dated 6th July 1992 on the deceased's mental condition and a letter dated 27th November 2007 from the District Officer, Githunguri, contending the deceased was of unsound mind and incapable of making the Will. Applying rule 31(1) of the Court of Appeal Rules, 2022 and the Supreme Court's guidelines in Mohamed Abdi Mahamud, the Court held that additional evidence is admitted only at the court's discretion and sparingly, never to patch gaps in a losing party's case. The applicants failed to demonstrate due diligence in obtaining the documents, and the issue of the deceased's mental state was never litigated before the High Court, which had expressly noted that lack of capacity was not alleged. The application was dismissed with costs abiding the outcome of the appeal. The main appeal remains pending.

Key legal issues

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01

Whether the applicants satisfied the threshold for admission of additional evidence on appeal under rule 31(1) of the Court of Appeal Rules, 2022

Holding

The application was dismissed. The applicants failed to demonstrate due diligence in attempting to obtain the medical report and District Officer's letter before and during the trial, and did not show that the evidence would remove vagueness or doubt on the issues in the appeal. Notably, the issue of the deceased's mental state was not litigated before the High Court.

Reasoning

The Court applied rule 31(1) and the guidelines in Mohamed Abdi Mahamud and Dorothy Nelima Wafula, reinforced by Mzee Wanje v A.K Saikwa on sparing exercise of the power. It found the medical report (1992) and the letter (2007) predated the deceased's death in 2008, were traceable through the deceased's sister's documents, and that no difficulties or due diligence efforts were deposed to. The High Court had recorded that lack of capacity was never alleged below, so the evidence did not bear on issues as litigated.

p. 5
02

The proper scope of an application for additional evidence in relation to the main appeal

Holding

The bench hearing the application must not prejudge the merits of the appeal; that remains for the bench seized of the appeal itself.

Reasoning

The Court cautioned itself against venturing into the merits while determining an interlocutory application, preserving the separation between the interlocutory stage and the hearing of the main appeal.

p. 5

Legal principles established

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  • Admission of additional evidence on appeal is discretionary, not a matter of right, and requires that the evidence could not have been obtained with reasonable diligence, that it would probably have had an important influence on the result, and that it is credible.
  • The power to admit additional evidence on appeal must be exercised sparingly and is not a device for a losing party to patch up weaknesses in its case or fill gaps in evidence.
  • The Mohamed Abdi Mahamud guidelines govern an appellate court's consideration of an application to admit additional evidence, including relevance, influence on the result, due diligence, credibility, and proportionality and prejudice.
  • A bench determining an application to adduce additional evidence should not delve into the merits and demerits of the main appeal.
  • Parties are expected to present all primary evidence before trial courts; admission of evidence on appeal is an exception recognised under the Court of Appeal Rules.

Court orders

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  1. 1.The Notice of Motion dated 24th September 2019 is dismissed as devoid of merit
  2. 2.Costs shall abide by the outcome of the appeal
On appeal from
High Court of Kenya
Not stated (succession cause; decision by R. E. Ougo, J.)
Jurisdiction invoked
Article 164(1) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act, read with rule 31(1) of the Court of Appeal Rules, 2022 (formerly rule 29(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR)", Case Analysis (2025). Civil Appeal No. 413 of 2019 (Application dated 24th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/451/eng@2025-03-07

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