Juma & another v Masakhalia & another
The bottom line
#Kenya's Court of Appeal refused to accept new surveyor's evidence because the appellants could have presented it at trial but chose not to.
What this practically means
#Executive summary
#Key legal issues
#Whether the County Surveyor's report met the conditions for admission of additional evidence on appeal under rule 31 of the Court of Appeal Rules, 2022
The report did not meet the conditions; the applicants failed to show due diligence, risked introducing a fresh case on appeal, and the respondents would be prejudiced by loss of cross-examination
The court applied the Wanje v Saikwa principles (drawn from Ladd v Marshall) and the Mohamed Abdi Mahamud guidelines. The occupation of the suit property was in issue at trial, the applicants were given an opportunity to produce a surveyor's report but allowed the site-visit order to be vacated through their own adjournments, and they produced no evidence that the report was commissioned by the respondents. Admission would fill gaps and deny the respondents cross-examination of the report's maker.
Legal principles established
#- Leave to adduce additional evidence on appeal is discretionary and the applicant must first demonstrate that the evidence could not, with reasonable diligence, have been obtained for use at the trial before the other Ladd v Marshall/Mohamed Abdi conditions are addressed
- An unsuccessful party at trial may not adduce additional evidence on appeal to fill gaps or patch up weak points in its case
Court orders
#- 1.The prayers for stay of execution and proceedings and for inhibition were marked as withdrawn after counsel abandoned them
- 2.The prayer for leave to adduce additional evidence (the County Surveyor's report) was dismissed
- 3.Costs of the application awarded to the 1st and 2nd respondents
- On appeal from
- Environment and Land Court at Busia
- Busia ELC Case No. 87 of 2015
- Jurisdiction invoked
- Rule 31 of the Court of Appeal Rules, 2022 (appellate discretion to take additional evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma & another v Masakhalia & another", Case Analysis (2026). Civil Appeal (Application) E078 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.