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Court of AppealDismissedCivil Application (not stated beyond motion dated 13th February, 2024)

Kenya Sunny Industries Companies Ltd v Ocharo & 2 others (Civil Application E030 of 2024) [2025] KECA 465 (KLR)

Court of Appeal of Kenya
7 March 2025
2,105 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a gold mining company's bid to add new evidence on appeal, confirming appellate courts admit fresh evidence only sparingly.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Asike-Makhandia, Kimaru and Muchelule, JJAA) on a notice of motion dated 13th February 2024 in which the applicant, an unsuccessful litigant before the Environment and Land Court at Vihiga in ELC No. E002 of 2024, sought leave under Rule 31 of the Court of Appeal Rules to adduce additional evidence on appeal. The proposed evidence comprised a report by the Cabinet Secretary for Mining dated 21st September 2023 on gold-mining licensing in Vihiga County, photographs and video of allegedly illegal mining on the suit parcels, a charge sheet dated 27th July 2023, and proceedings recording the conviction of the 2nd respondent's staff. The application was unopposed. The court applied the Mohamed Abdi Mahamud guidelines and the Torino Enterprises criteria, and the principle in Mzee Wanje v A.K. Saikwa that the power to receive additional evidence is exercised sparingly. It found that the proposed evidence did not mention the suit parcels or the applicant's claimed exclusive mining rights, and would introduce issues never litigated at trial, clouding and confusing the appeal. The applicant had procured the material before the trial court delivered judgment and could have applied to arrest judgment; no exceptional circumstances were shown. The court dismissed the application and made no order as to costs. The lower court's decision was not disturbed at this interlocutory stage.

Key legal issues

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01

Admissibility of additional evidence on appeal under Rule 31

Holding

The application fails because the evidence sought does not address the issues determined by the trial court (ownership and exclusive mining rights over the suit parcels) and instead introduces new, unlitigated issues.

Reasoning

The court applied the Mohamed Abdi Mahamud guidelines and the Torino Enterprises criteria. The proposed evidence concerned illegal mining generally and convictions of the 2nd respondent's staff, but did not mention the suit parcels or the applicant's claimed exclusive mining rights. It would cloud and confuse the appellate issues. Further, the evidence was procured before judgment was delivered, so the applicant could have sought to arrest judgment before the trial court.

p. 4
02

Duty of a party aware of evidence before judgment is delivered

Holding

A party who procures evidence before the trial court delivers judgment should apply to that court, not seek to introduce it for the first time on appeal.

Reasoning

The applicant admitted it procured the report and other materials before the trial court delivered its verdict. Nothing prevented an application to arrest judgment so the trial court could consider the material. Seeking its admission on appeal instead amounted to an attempt to patch the case on appeal, which the Mzee Wanje principle forbids.

p. 5

Legal principles established

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  • Additional evidence on appeal will only be admitted where it is relevant to the issues litigated at trial; appellate courts must exercise the power sparingly and will not admit evidence to patch up weaknesses in an unsuccessful party's case.

Court orders

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  1. 1.Application dismissed as it lacks merit
  2. 2.No orders as to costs
On appeal from
Environment and Land Court at Vihiga
ELC No. E002 of 2024
Jurisdiction invoked
Rule 31 of the Court of Appeal Rules

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, "Kenya Sunny Industries Companies Ltd v Ocharo & 2 others (Civil Application E030 of 2024) [2025] KECA 465 (KLR)", Case Analysis (2025). Civil Application (not stated beyond motion dated 13th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/465/eng@2025-03-07

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