Edwin K Too v Paul K Sitienei
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the post-ruling complaint to the Advocates Complaints Commission qualified as admissible additional evidence on appeal
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.
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.
Legal principles established
#- 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
#- 1.The application dated 2nd October 2020 seeking leave to file new evidence is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.