Karauki & 2 others v Thuranira (Environment and Land Appeal E093 of 2021) [2025] KEELC 5633 (KLR)
The bottom line
#A Kenyan land appeal court allowed the appellants to amend their appeal but refused to let them introduce new evidence they could have used at trial.
What this practically means
#Executive summary
#Key legal issues
#Leave to amend a memorandum of appeal
Leave to amend granted; the respondent did not oppose this plea with grounds justifying departure from the general principle favouring amendments
Order 42 rule 3 permits amendment after the time limited for filing amended memoranda without leave. The general principle from Central Kenya Ltd v Trust Bank Ltd is that amendments necessary to determine the real controversy should be allowed absent undue delay, new or inconsistent causes of action, or injustice. The respondent's replying affidavit focused on additional evidence and did not seriously oppose the amendment. The court therefore allowed the amendment with 10 days to file and serve.
Leave to adduce additional evidence in the appeal
Refused; the criteria of due diligence, credibility and authenticity were not met
Section 78(1) CPA and Order 42 rules 27-29 govern admission of additional evidence. Under the Mohamed Abdi Mahamud criteria, the applicant must show the evidence could not be obtained with reasonable diligence, is credible, and relevant. The objection proceedings were dated 1998, the trial ran from December 2020 to March 2021, yet the applicants never explained where the documents came from, why they were not produced at trial, nor exhibited an official receipt establishing authenticity. The evidence appeared to be a post-loss attempt to patch the case.
Legal principles established
#- A party may amend a memorandum of appeal after the prescribed time with leave of the court, in the absence of grounds justifying departure from the general principle favouring amendments necessary to determine the real question in controversy
- A party unsuccessful at trial who goes fishing for purported new evidence after judgment, without explaining its source or lack of reasonable diligence, does not meet the criteria for admission of additional evidence on appeal
Court orders
#- 1.The plea for leave to amend the memorandum of appeal is allowed in terms of prayer 2 and the appellants are granted 10 days within which to file and serve their amended memorandum of appeal
- 2.The plea for leave to adduce additional evidence in this appeal is rejected
- 3.The appellants/applicants shall bear costs of the application
- Jurisdiction invoked
- Sections 78 and 100 of the Civil Procedure Act; Order 8 rule 3 and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karauki & 2 others v Thuranira (Environment and Land Appeal E093 of 2021) [2025] KEELC 5633 (KLR)", Case Analysis (2025). Not stated in the excerpt (appeal filed 11/8/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5633/eng@2025-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.