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ELCDismissedNot stated in judgment (appeal from Machakos CMCC No. E3 of 2020)

Muasya v Mailu (Environment and Land Appeal E001 of 2023) [2025] KEELC 6114 (KLR)

Environment and Land Court
23 September 2025
AKA. Y. Koross
2,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to let an appellant add new evidence on appeal because he could have obtained it before trial.

What this practically means

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Executive summary

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This is a ruling by A. Y. Koross, Judge of the Environment and Land Court at Machakos, on a notice of motion dated 7/07/2023 by the appellant in an appeal against the judgment of Hon. E. M. Analo, Senior Resident Magistrate, delivered on 22/12/2022 in Machakos CMCC No. E3 of 2020, in which the appellant's claim for special damages (trees allegedly cut from suit property Iveti/Kaewa/1700, valued at Kshs. 416,319) was dismissed. The appellant sought leave to adduce additional documentary evidence - a letter to the County Government of Machakos Roads and Transport and a County Surveyor's Report - by way of a supplementary record of appeal. The respondent opposed, arguing the evidence was an attempt to patch up weak points and was prejudicial. The court identified a single issue: whether leave to adduce additional evidence should be granted. Applying the framework in Section 78 of the Civil Procedure Act, Order 42 Rules 27-29, and the Supreme Court's principles in Mohamed Abdi Mahamud, the court accepted that the surveyor's report was directly relevant and would impact the case, since it placed tree stumps within the suit property boundaries. However, the appellant failed to show the evidence could not have been obtained with reasonable diligence: its relevance was always within his knowledge, he never sought the documents before judgment, and none were denied or unavailable to him. The court held he was the author of his own misfortune, and that the application was an attempt by an unsuccessful party to present a new case on appeal and patch up weak points. The motion was dismissed with costs to the respondent. The lower court record was called for, and directions issued for the appeal to proceed by written submissions, the appellant's limited to 7 pages and filed within 45 days, with the respondent to respond within 45 days of service.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant should be granted leave to adduce additional evidence on appeal

Key legal issues

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01

Whether the appellant should be granted leave to adduce additional documentary evidence on appeal

Holding

The application was dismissed because the evidence could have been obtained with reasonable diligence before judgment and is an attempt to fill gaps and patch weak points

Reasoning

The court applied the Supreme Court's Mohamed Abdi Mahamud criteria. Although the surveyor's report and letter were directly relevant to whether the cut trees were on the suit property, that relevance was always within the appellant's knowledge, he never sought the documents before judgment, and no denial or unavailability was shown. Reasonable diligence would have produced the documents at trial, so allowing them would let an unsuccessful litigant present a fresh case on appeal.

p. 5

Legal principles established

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  • Leave to adduce additional evidence on appeal is granted only in exceptional circumstances and the applicant must substantially satisfy the Mohamed Abdi Mahamud principles, which are not conjunctive

Court orders

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  1. 1.Notice of motion dated 7/07/2023 dismissed with costs to the respondent
  2. 2.Lower court record called for and a mention date to be scheduled before the deputy registrar
  3. 3.Parties to proceed with the appeal by filing written submissions, the appellant's submissions limited to 7 pages, to be filed within 45 days
  4. 4.Respondent granted leave to respond within 45 days of service

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Machakos
CMCC NO. E3 of 2020
Jurisdiction invoked
Articles 60, 70 and 162 of the Constitution of Kenya; Section 13 of the Environment and Land Court Act; Section 78 of the Civil Procedure Act; Order 42 Rules 27, 28 and 29 & Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Leave to take additional documentary evidence (letter to County Government of Machakos Roads and Transport and the County Surveyor's Report) and to file a supplementary record of appeal

The evidence was obtainable with reasonable diligence, was within the appellant's knowledge, and the application amounts to an unsuccessful party seeking to patch up weak points in his case on appeal

p. 5

Costs

Dismissed with costs to the respondent.

Quotable passages

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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 ultimately finds the notice of motion dated 7/07/2023 unmeritorious, and it is hereby dismissed with costs to the respondent
p. 5Final orders - dismissal of the motion
the attempt by the appellant to introduce additional evidence on appeal is made by him as an unsuccessful party to present a new case on appeal, fill in omissions, and patch up weak points in the case
p. 5Additional evidence on appeal - patching weak points
The principles outlined in Mohamed Abdi Mahamud (Supra) are not conjunctive. Nevertheless, an applicant, in this case the appellant, must meet the criteria substantially.
p. 3Application of the Mohamed Abdi Mahamud principles

Issues in the judgment

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minor

Date inconsistency: the body of the ruling records submissions dated January 2024 yet the ruling is delivered and dated 23 September 2025 without explanation, and the substantive appeal (filed 10/03/2023) remains pending

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muasya v Mailu (Environment and Land Appeal E001 of 2023) [2025] KEELC 6114 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from Machakos CMCC No. E3 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6114/eng@2025-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.