Ekiru v Chepchirchir (Suing as the Legal Representative of the Estate of Christopher Koech Tirieto (Deceased)) (Environment and Land Appeal E024 of 2024) [2025] KEELC 3785 (KLR)
The bottom line
#Kenya's High Court refused to let an appellant add forgotten witnesses on appeal, confirming courts will not allow litigants to fix weak cases after losing at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant should be granted leave to adduce additional evidence on appeal
The application was refused. The appellant gave no cogent explanation for failing to join the third party or call her as a witness during the trial, and allowing new evidence at that stage would prejudice the respondent.
Section 78(1)(d) of the Civil Procedure Act empowers the court to take additional evidence, but not to fill gaps or build a fresh case on appeal. The Kuwinda Rurinja criteria require diligence at trial, probable important influence on the result, and apparent credibility. The appellant filed the joinder application more than a year after parties closed their cases on 11.4.2023, having testified he knew plot 46 was occupied by a third party. Admitting the new evidence would be prejudicial to the respondent.
Whether the trial proceedings should be declared a mistrial and remitted for de novo hearing
Refused at this interlocutory stage; the question should be canvassed in the main appeal where the appellant's principal prayer is setting aside the trial judgment.
The court held that a claim of mistrial is intertwined with the appeal itself, whose principal prayer is setting aside the trial court's judgment. It was therefore inappropriate to determine it on the interlocutory application.
Legal principles established
#- The power to take additional evidence on appeal under Section 78(1)(d) of the Civil Procedure Act is not meant to allow admission of evidence to fill gaps or make out a fresh case on appeal.
- The conditions for admitting new evidence on appeal are: the evidence could not have been obtained with reasonable diligence for use at the trial; it would probably have an important influence on the result though it need not be decisive; and it must be apparently credible though not incontrovertible.
Court orders
#- 1.The application dated 9.1.2025 is dismissed with costs to the respondent
- On appeal from
- Trial court (lower court), Maralal
- Jurisdiction invoked
- Section 78(1)(d) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ekiru v Chepchirchir (Suing as the Legal Representative of the Estate of Christopher Koech Tirieto (Deceased)) (Environment and Land Appeal E024 of 2024) [2025] KEELC 3785 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3785/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.