Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application (in pending appeal)

Kamau v Wanyoike & 16 others (Civil Appeal (Application) E741 of 2021) [2025] KECA 493 (KLR)

Court of Appeal of Kenya
21 March 2025
2,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed a landowner to introduce a fraud conviction as new evidence in his property appeal, because the conviction happened after the original trial.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Gatembu Kairu, Tuiyott and Achode, JJA) delivered on 21st March 2025 on a notice of motion dated 19th June 2024 by the appellant, Bernard Gachie Kamau, in a pending appeal against the judgment of Gacheru, J dated 30th September 2021 in Thika ELC Appeal No. E65 of 2019, which upheld the trial court's rejection of the appellant's application for review of a judgment concerning ownership of Ruiru/Kiu/Block 2/3758. The motion sought leave to adduce additional evidence on appeal, namely the judgment and ruling on sentence in Thika Chief Magistrates Court Criminal Case No. 2586 of 2010, Republic v Edward Samuel Ngugi, in which the accused, from whom the respondents' claim to the suit property stems, was convicted of fraud in the acquisition of the property. The second prayer for consolidation with Civil Appeal No. E041 of 2023 was abandoned at the hearing. The respondents opposed, arguing the criminal evidence was always available, that the applicant failed to plead and prove fraud, that this was a third attempt to bring in fresh evidence, and that the applicant waived his right to appeal the rejection of additional evidence at trial. Applying the Supreme Court's principles in Mahamud v Mohamad, the Court allowed the application, holding that a court judgment and ruling are credible, straightforward evidence that could not have been obtained with reasonable diligence at trial since the conviction post-dated the review application. The Court left the assessment of the evidence's probative value to the bench hearing the substantive appeal, granted the respondents leave to file a responding supplementary record, and ordered costs to be in the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to the appellant to adduce additional evidence, being the judgment and ruling on sentence in Thika Chief Magistrates Court Criminal Case No. 2586 of 2010, Republic v Edward Samuel Ngugi, on the pending appeal
  2. 2.Whether the additional evidence satisfies the governing principles for admission of additional evidence on appeal

Key legal issues

#
01

Whether the judgment and ruling on sentence in the criminal proceedings qualify as admissible additional evidence on appeal

Holding

The Court found the evidence met the criteria for admission: it is credible (being a court judgment and ruling), straightforward and easy to respond to, and could not have been obtained with reasonable diligence at trial since the conviction post-dated the trial court judgment and the review application.

Reasoning

The Court traced the history of attempts to introduce criminal proceedings into the dispute, noting this was at least the third attempt. However, it held that the conviction itself did not exist at the time of the review application, so the usual objection that the evidence was available could not defeat it. The Court declined to make a final assessment of probative value, reserving that to the bench hearing the substantive appeal, but found a nexus between the evidence and the appeal since part of the journey of the respondents' title was found tainted by fraud.

p. 6
02

Who should assess the probative value of the admitted evidence

Holding

The Court reserved the question of relevance and probative value of the additional evidence to the bench that will hear the substance of the appeal.

Reasoning

The Court noted that the appeal raises the narrow question whether rejection of the review application was correct, not a merits assessment of the trial judgment. It was cautious about concluding finally that the criminal conviction was irrelevant, and left that determination, along with the weight of the evidence, to the appeal bench.

p. 6

Legal principles established

#
  • Additional evidence may be admitted on appeal only in exceptional circumstances, on a case-by-case basis, sparingly and with abundant caution, applying the Mahamud principles including direct relevance, likely influence on the verdict, and inability to obtain the evidence with reasonable diligence at trial.
  • Where a court admits additional evidence on appeal, the opposing party is entitled to leave to adduce evidence challenging that new evidence.

Court orders

#
  1. 1.Leave granted to the appellant to adduce additional evidence, namely the judgment and ruling on sentence in Chief Magistrates Court Criminal Case No. 2586 of 2010, Republic v Edward Samuel Ngugi
  2. 2.A supplementary record introducing the judgment and ruling on sentence to be filed and served within 14 days
  3. 3.Leave granted to the respondents to file a further supplementary record limited to responding to the new evidence within 14 days of service
  4. 4.Costs of the application to be in the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Thika
ELC Appeal No. E65 of 2019
Jurisdiction invoked
Articles 24, 48, 50(1) and 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 31 of the Court of Appeal Rules, 2022

Relief refused

#

Consolidation of this appeal with Nairobi Court of Appeal Civil Appeal No. E041 of 2023

The plea was abandoned by counsel for the applicant at the plenary hearing

p. 2

Costs

Costs shall be in the appeal.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Ultimately, the notice of motion dated 19th June 2024 is for allowing as we now do. Costs shall be in the appeal.
p. 6final orders - application allowed
Our further orders are that a supplementary record introducing the judgment and the ruling on sentence in the Chief Magistrate Court at Thika, Chief Magistrates Court Criminal Case No. 2586 of 2010, Republic v Edward Samuel Ngugi shall be filed and served within 14 days hereof
p. 6final orders - supplementary record directions
For now, we see some nexus between this evidence and the current appeal as part of the journey of the title now held by the respondents has been found to be tainted by fraud by a court of law in criminal proceedings.
p. 6nexus between additional evidence and appeal
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:
p. 4Mahamud principles on additional evidence

Issues in the judgment

#
minor

The judgment refers inconsistently to the criminal case number, describing it as 'Chief Magistrates Court Criminal Case No. 2586 of 2010' in the opening and closing passages but as 'Criminal Case No. 2586 of 2017' in paragraph 11.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamau v Wanyoike & 16 others (Civil Appeal (Application) E741 of 2021) [2025] KECA 493 (KLR)", Case Analysis (2025). Civil Application (in pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/493/eng@2025-03-21

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