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ELCDismissedMCELC No. E066 of 2022 (Appeal)

Kinyua & 2 others v Kamau (Environment and Land Appeal E117 of 2024) [2026] KEELC 107 (KLR)

High Court of Kenya
21 January 2026
1,500 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court refused to let appellants introduce a valuation report on appeal because they could have obtained it during the original trial.

What this practically means

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Executive summary

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This ruling by J.M Onyango, J of the High Court determines the Appellants' Notice of Motion dated 6th March 2025 in an appeal from MCELC No. E066 of 2022, decided by Hon. C.K Kisiangani, Principal Magistrate. The Appellants sought leave to adduce additional evidence on appeal in the form of a valuation report on the suit properties (sub-divisions of Ruiru/Mugutha Block 1 T.599), and further sought an order that the Government valuer, Kiambu through Ruiru Lands Registry conduct a valuation. The Appellants argued that the trial magistrate lacked monetary jurisdiction because the suit properties were valued at Kshs. 29,100,000, exceeding the magistrate's Kshs. 10,000,000 limit, and relied on Samuel Kamau Macharia and The Owners of Motor Vessel Lilian 'S' to urge that jurisdiction can be raised at any time, including on appeal. The Respondent opposed, characterising the application as an afterthought, noting the jurisdiction issue was never raised at trial and the Defence admitted jurisdiction, and relied on the Supreme Court's Mahamud v Mohamad principles for admitting additional evidence on appeal. The court framed a single issue: whether additional evidence should be admitted. Applying Section 78(1) of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, the Mahamud guidelines and Ringi v Seif, the court held the threshold was not met: the valuation report could have been obtained with due diligence at trial, the Defence admitted jurisdiction, and the evidence sought to introduce a fresh case. The application was dismissed with costs to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the Appellants should be allowed to adduce additional evidence on appeal

Key legal issues

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01

Whether leave should be granted to adduce additional evidence (a valuation report) on appeal

Holding

The application was dismissed because the Appellants failed to demonstrate due diligence, the evidence did not meet the Mahamud threshold, and it was aimed at raising jurisdiction for the first time on appeal.

Reasoning

The court applied Section 78(1) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, together with the Supreme Court's guidelines in Mahamud v Mohamad. Although an appellate court has discretion to admit additional evidence, it must be exercised judicially and sparingly. The Appellants' Defence dated 6th June 2023 admitted the trial court's jurisdiction, and they did not show the valuation report could not have been obtained with reasonable diligence for use at trial. The evidence would introduce a fresh case rather than resolve doubt on existing issues.

p. 4

Legal principles established

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  • The power to admit additional evidence on appeal should be exercised sparingly and with great caution within the principles set out in Order 42 Rule 27 and the Mahamud guidelines
  • Additional evidence that came into existence after the impugned judgment cannot be admitted on appeal
  • A party unsuccessful at trial may not use additional evidence on appeal to make a fresh case, such as by challenging jurisdiction for the first time

Court orders

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  1. 1.The Appellants' Notice of Motion dated 6th March 2025 seeking leave to adduce additional evidence on appeal is dismissed
  2. 2.Costs shall abide the outcome of the Appeal

The bench

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

majority

Wrote the judgment

On appeal from
Magistrate's Court
MCELC No. E066 of 2022
Jurisdiction invoked
Section 78(1) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules (appellate jurisdiction over appeals from the Magistrate's Court)

Relief refused

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Leave to adduce additional evidence in the form of a valuation report on the suit property

The threshold in Order 42 Rule 27 and the Mahamud principles was not met; the report could have been obtained with reasonable diligence at trial and the Defence admitted the trial court's jurisdiction

p. 4

Order that the Government valuer, Kiambu through Ruiru Lands Registry conduct a valuation of the suit properties

It was ancillary to the rejected application to adduce the valuation evidence and was not separately granted

p. 4

Costs

Costs shall abide the outcome of the Appeal.

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.

Even though an appellate court has the discretion to take additional evidence, the same must be exercised judicially within set principles. The power to admit additional evidence should be exercised sparingly and with great caution.
p. 3Discretion to admit additional evidence on appeal
the appellants have not demonstrated that they could not have obtained the valuation report now sought to be introduced after the exercise of due diligence.
p. 4Failure of due diligence
the issue of the value of the suit property does not remove any vagueness or doubt on the issues in the appeal, if anything it seeks to introduce a fresh case by challenging the trial court’s jurisdiction.
p. 4Fresh case on appeal
Consequently, I decline to allow the appellants to adduce additional evidence and proceed to dismiss the application.
p. 4Disposition
Costs shall abide the outcome of the Appeal.
p. 4Costs

Issues in the judgment

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minor

Internal inconsistency in the date of the Appellants' Defence: paragraph 5 refers to a Defence dated 16.5.23 while paragraph 18 refers to a Defence dated 6th June 2023

minor

Typographical errors in the parcel numbers cited in the Notice of Motion (Ruiru/Mugutha Block 1 T.1055, 105556 and 10557) appear garbled

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, "Kinyua & 2 others v Kamau (Environment and Land Appeal E117 of 2024) [2026] KEELC 107 (KLR)", Case Analysis (2026). MCELC No. E066 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/107/eng@2026-01-21

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