Kinyua & 2 others v Kamau (Environment and Land Appeal E117 of 2024) [2026] KEELC 107 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellants should be allowed to adduce additional evidence on appeal
Key legal issues
#Whether leave should be granted to adduce additional evidence (a valuation report) on appeal
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.
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.
Legal principles established
#- 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
#- 1.The Appellants' Notice of Motion dated 6th March 2025 seeking leave to adduce additional evidence on appeal is dismissed
- 2.Costs shall abide the outcome of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
Costs shall abide the outcome of the Appeal.
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.
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.
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.
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.
Consequently, I decline to allow the appellants to adduce additional evidence and proceed to dismiss the application.
Costs shall abide the outcome of the Appeal.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.