Wafula v Wang'undu
The bottom line
#Kenya's Court of Appeal allowed a litigant to add new documents mid-trial, ruling that evidence rules are applied flexibly, not as a rigid checklist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal, on second appeal, could interfere with the exercise of discretion by the subordinate court and High Court in rejecting the appellant's application to introduce additional documents
- 2.Whether the guidelines for additional evidence apply as a rigid check-box or flexibly according to the circumstances of each case
- 3.Whether prejudice, delay and the stage of proceedings justified refusal of the application
Key legal issues
#Scope of second appellate jurisdiction
The Court is confined to matters of law on second appeal and may interfere where the courts below exercised discretion on wrong principles or failed to consider relevant matters.
Relying on Kenya Breweries Ltd v Godfrey Odoyo, the Court restated that a second appeal is confined to questions of law, including whether the courts below considered matters they should not have, omitted relevant matters, or reached a perverse decision. The Court found the courts below misapplied the additional-evidence principles, warranting interference with their discretionary rulings.
Application of the additional-evidence guidelines
The Mohammed Abdi Mohamud guidelines are applied flexibly, not as a check-box, and some apply at trial stage and others at appellate stage.
The Court held that not all the Supreme Court's guidelines apply in every case; their relevance depends on whether additional evidence is sought at trial or on appeal. Here the application was made at the trial stage, before the respondent closed her case, so the appellate-stage considerations relied on by the lower courts were inapt.
Prejudice and stage of proceedings
Because the respondent had testified but not closed her case, minimal prejudice arose and could be cured by costs and recall/cross-examination.
The Court found the respondent had testified but had not called further witnesses or closed her case. She could be recalled to speak to the new documents and cross-examine the appellant; the documents were not bulky. Prejudice was therefore minimal and addressable by costs, undermining the lower courts' refusal.
Delay attributable to the applicant
Although the application came seven years after suit, the appellant was not responsible for the delay in commencement of the hearing, so delay could not be visited upon her.
The suit was filed in 2015 but the appellant only became a participant in 2017 when the interlocutory judgment was set aside by consent. The hearing commenced in 2018 and adjournments were attributable to the respondent's witness. The Court held it unreasonable to blame the appellant for delay she did not cause.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law, unless the courts below considered or failed to consider matters they should not have or the decision is perverse.
- The Supreme Court's guidelines on additional evidence are not a rigid check-list; each case is determined on its own circumstances and stage of proceedings.
- Where a party who has testified has not closed her case, refusal to admit additional evidence causes no or minimal prejudice addressable by costs.
- Delay in proceedings not attributable to the applicant should not be visited upon her when assessing an application to introduce additional evidence.
Court orders
#- 1.The appellant's application dated 19th March 2022 to file additional documents out of time is allowed
- 2.The respondent shall have the costs of the proceedings in the subordinate Court related to the hearing of the application dated 19th March 2022
- 3.Each party shall bear their own costs of the proceedings in the High Court and in this Court
- 4.The hearing in CMCC No. 486 of 2015 shall proceed before a different magistrate other than Hon. C.A.S. Mutai (SPM)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma High Court Civil Appeal No. E123 of 2022
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Civil Procedure Act/Rules (specific provision not stated in the judgment)
Relief refused
#Costs of the High Court and of this Court
Each party was ordered to bear their own costs at those levels
Costs
Respondent to have costs of the subordinate court proceedings on the application dated 19th March 2022; each party to bear their own costs in the High Court and in this Court.
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.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
It is not our understanding that the guidelines given by the Supreme Court ought not to be ticked individually against a check-box. Each case ought to be determined based on the obtaining circumstances, as not all the guides given would all apply in all cases.
In the circumstances, there would have been no or minimal prejudice caused to the respondent, which in any event could have still be addressed by way of costs.
the record does not suggest that the appellant was responsible for the delay in the commencement of the hearing, and it was therefore not reasonable for the cause of the delay to be visited upon her.
The appellant's application dated 19th March 2022 to file additional documents out of time is allowed.
The hearing in CMCC No. 486 of 2015 in the subordinate Court shall proceed before a different magistrate other than Hon. C.A.S. Mutai (SPM).
Issues in the judgment
#Conflicting dates for the respondent's testimony
Later passage gives a different date for the same testimony
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Wang'undu", Case Analysis (2026). Civil Appeal E490 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.