Keli v Matiku (Environment and Land Appeal E022 of 2022) [2025] KEELC 2904 (KLR)
The bottom line
#A Kenyan land appellant could not introduce replotting evidence on appeal because she failed to show it was relevant, case-changing, and impossible to get earlier.
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 Applicant has demonstrated merit in the application for production of additional evidence
Key legal issues
#Whether leave to adduce additional evidence on appeal should be granted
The application fails because the Applicant did not establish that the replotting evidence was relevant, influential, or unobtainable with reasonable diligence, and she had no counterclaim to the suit property
The court applied Order 42 Rule 27 and the Supreme Court's criteria in Attorney General v Zinj Limited. The evidence merely showed renaming of Plot 1421 to Plot 1562; there was no proof of boundary or size change. The Applicant filed no counterclaim at trial, so no ownership claim of hers was in issue. Permitting the evidence would enable her to make out a fresh case on appeal, contrary to the restrictive principles in Fibre Link, Tarmohamed v Lakhani and Wanjie v Sakwa.
Legal principles established
#- Additional evidence on appeal is allowed only exceptionally and on fulfillment of the Ladd v Marshall conditions
- The power to admit additional evidence on appeal should be exercised sparingly and is not for patching gaps in a case
Court orders
#- 1.The Notice of Motion dated 23rd September 2024 seeking leave to adduce additional evidence and stay of the judgment dated 24th October 2022 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (trial court not expressly named)
- null
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 78 of the Civil Procedure Act; Order 42 Rules 6 and 27 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Leave to adduce additional evidence on appeal
The Applicant failed to demonstrate the relevance of the evidence, its influence on the case, or that it could not have been obtained with reasonable diligence
Stay of the judgment dated 24th October 2022 pending appeal
The application, which included the stay prayer, was found to be devoid of merit and dismissed in its entirety
Costs
Application dismissed with costs to the Respondent
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.
The Applicant has not demonstrated any relevance of the new evidence she has sought to adduce. She has not demonstrated what infiuence the said evidence would have had in her case had she had the opportunity to present it before the subordinate court.
There is no evidence to support the Applicant’s assertion that the replotting exercise afiected the boundaries or the size of the suit property. At any rate, the Applicant did not present a counterclaim demonstrating that she had any ownership claim to the suit property.
In the end, I find that the application herein is devoid of merit and is hereby dismissed with costs. It is so ordered.
Issues in the judgment
#The judgment does not state the case number of the appeal or the name of the Respondent in the caption; the Respondent's name never appears in the text
The trial court whose judgment of 24th October 2022 is the subject of the appeal is not identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keli v Matiku (Environment and Land Appeal E022 of 2022) [2025] KEELC 2904 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2904/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.