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Court of AppealDismissedCivil Appeal (Application) E202 of 2024· [2025] KECA 2207 (KLR)

Runo & another v Runo

Court of Appeal
11 December 2025
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to hear new evidence that a family simply forgot to file earlier, confirming negligence never justifies late evidence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kantai, Lessit and Ali-Aroni, JJA) on a notice of application dated 22nd January 2025 in which Marion Nyakairo Runo and Isaiah Gichohi Runo sought leave to adduce further evidence in their appeal against a ruling of the Environment and Land Court delivered on 9th May 2024, dismissing their suit in ELC No. 254 of 2013. The evidence sought was an alleged will of the applicants' late father, Runo Mukuhu Njagi, which they said had been handed to their advocate but never filed at the ELC, an omission they argued should not be visited upon them. The respondent opposed, contending the application was frivolous, an abuse of process, and in effect a bid for a fresh trial. The court invoked its power under rule 31(1)(b) of the Court of Appeal Rules, 2022, and adopted the guidelines restated in Chege v Chege and the Supreme Court's decision in Mohamed Abdi Mahamud: additional evidence on appeal is allowed sparingly, on a case-by-case basis, where it could not have been obtained by reasonable diligence, would probably have influenced the result, and is credible. Holding that the will was always available and its omission was due to negligence, and noting the applicants' failure to attach the ELC judgment, the court found the threshold unmet and dismissed the application with costs to the respondent. The decision binds subordinate courts and superior courts of co-ordinate jurisdiction on the applicable threshold.

Key legal issues

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01

Whether the applicants satisfied the threshold for adducing additional evidence on appeal

Holding

The threshold was not met; the will was always available and its omission was due to negligence, which cannot be visited on the opposing party.

Reasoning

The court applied the settled guidelines from Chege v Chege and the Supreme Court's decision in Mohamed Abdi Mahamud: evidence must not be obtainable by reasonable diligence earlier, must probably have had an important influence on the result, and must be credible. The applicants failed the first limb because the will was in their possession but never filed, an omission attributable to their advocate's negligence. Their failure to attach the ELC judgment also prevented the court from assessing the will's effect on the proceedings below.

p. 3

Legal principles established

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  • Additional evidence on appeal is allowed sparingly, on a case-by-case basis, and only where it could not have been obtained by reasonable diligence, would probably have had an important influence on the result, and is credible.
  • Evidence omitted through a party's own negligence or that of counsel does not constitute sufficient reason to admit additional evidence on appeal.

Court orders

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  1. 1.The application for leave to adduce further evidence is dismissed with costs to the respondent
On appeal from
Environment and Land Court
E.L.C No. 254 of 2013
Jurisdiction invoked
Rule 31(1)(b) of the Court of Appeal Rules, 2022

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, "Runo & another v Runo", Case Analysis (2025). Civil Appeal (Application) E202 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2207/eng@2025-12-11

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