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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment (application dated 2nd October 2020 in an appeal against an ELC ruling of 5th November 2019)· [2025] KECA 1332 (KLR)

Edwin K Too v Paul K Sitienei

Court of Appeal
18 July 2025
954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to allow new evidence on appeal because it was filed only after the trial court's adverse ruling exposed gaps in the case.

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, delivered on 18th July 2025 by a bench of S. Gatembu Kairu, F. Ochieng and A.O. Muchelule, Judges of Appeal, in a single judgment of the court. The underlying appeal challenges an ELC ruling of 5th November 2019 refusing to set aside a consent order dated 25th May 2017, in which the ELC Judge found the applicant had not proven fraud or absence of instructions to his then advocates. By an application dated 2nd October 2020, the applicant sought leave to file as additional evidence a complaint he lodged against his former advocates with the Advocates Complaints Commission on 13th March 2020, together with the Commission's responses dated 21st May 2020 and 4th September 2020. The Court, applying Rule 31(1)(b) of the Court of Appeal Rules and the Supreme Court's principles in Mohamed Abdi Mahamud v Ahmed Abdulahi Mohamed & 3 Others [2018] eKLR - including that additional-evidence applications are determined case by case, sparingly and with abundant caution, and must not be used to make a fresh case on appeal or patch weak points - held that the complaint was lodged only after the impugned ruling exposed the absence of evidence, with no explanation for the delay. The evidence was therefore an attempt to fill gaps. The application was dismissed with costs to the respondent, whose counsel was absent despite service. This ruling binds lower courts on the principles governing additional evidence on appeal, affirming that evidence generated only after an adverse ruling to cure evidential deficiencies will not be admitted.

Key legal issues

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01

Whether the post-ruling complaint to the Advocates Complaints Commission qualified as admissible additional evidence on appeal

Holding

No. The applicant only lodged the complaint after the ELC Judge found no evidence supporting his fraud claim; the evidence is an attempt to make a fresh case and patch weak points, and the discretion under Rule 31(1)(b) should not be exercised in his favour.

Reasoning

The Court applied the Mohamed Abdi Mahamud principles, which require that additional evidence not be used to fill gaps or make a fresh case on appeal. The applicant could not explain why the complaint was not made soon after learning his advocates had entered the consent order. Lodging the complaint only after the impugned ruling showed it was a reactive attempt to cure evidential deficiencies, defeating the requirements of reasonable diligence and fairness.

p. 3

Legal principles established

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  • Rule 31(1)(b) of the Court of Appeal Rules empowers the Court, in its discretion and for sufficient reason, to take additional evidence on appeal, but such applications are determined on a case-by-case basis, sparingly and with abundant caution.
  • A party unsuccessful at trial may not use additional evidence on appeal to make a fresh case, fill up omissions or patch up weak points in its case.

Court orders

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  1. 1.The application dated 2nd October 2020 seeking leave to file new evidence is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment and Land Court
Jurisdiction invoked
Rule 31(1)(b) of the Court of Appeal Rules (discretion to receive additional evidence on appeal)

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, "Edwin K Too v Paul K Sitienei", Case Analysis (2025). Not stated in the judgment (application dated 2nd October 2020 in an appeal against an ELC ruling of 5th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1332/eng@2025-07-18

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