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ELCDismissedNot stated in the judgment (application dated 18th July 2025)

Wakhule v Atipole (Environment and Land Appeal E045 of 2024) [2026] KEELC 1712 (KLR)

Environment and Land Court
11 March 2026
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to allow new survey evidence on appeal because the appellant obtained it too late and without a good reason.

What this practically means

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Executive summary

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This was an application dated 18th July 2025 by the appellant in an appeal before the Environment and Land Court at Kakamega, seeking admission of a Kakamega County Surveyors report dated 28th May 2025 and a resultant Land Registrar's report dated 25th June 2025 as additional evidence on appeal, with costs of the application to abide the appeal. The dispute concerned the acreage of land comprised in LR No. E/Wanga.eluche/1956 and E/Wanga.eluche/1957. The appellant argued the survey report would clarify the actual acreage discrepancies, and that the evidence could not be procured before the trial court delivered judgment. The respondent opposed, noting there was no application for the surveyor and Land Registrar to visit the suit property, that the reports raised fresh issues, and that a Land Registrar's report dated 13th March 2025 had already been filed in the lower court. The court identified a single issue: whether the applicant met the threshold for production of new evidence on appeal. Relying on Section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, and the Supreme Court's guidelines in Mohamed Abdi Mahamud, the court held that admission of additional evidence is discretionary, reserved for exceptional cases, and requires due diligence, credibility and material influence on the outcome. Since the reports were procured 9 months after judgment without explanation, the application was dismissed with costs on 11th March 2026.

Questions the Court framed

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

  1. 1.whether the applicant has met the threshold for production of new evidence on appeal

Key legal issues

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01

Whether the applicant met the threshold for production of new evidence on appeal

Holding

The application failed; the evidence was not procured with due diligence before judgment and was an attempt to patch gaps in the appellant's case

Reasoning

The court applied the Mohamed Abdi Mahamud guidelines from the Supreme Court. The report sought to be admitted was prepared 9 months after the trial court's judgment, and no explanation or court order was sought to have the evidence availed before judgment. The evidence was therefore not obtained with reasonable diligence and was directed at curing deficiencies in the appellant's case at trial, which the law does not permit. The application was accordingly dismissed with costs.

p. 3

Legal principles established

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  • Admission of new evidence on appeal is discretionary and allowed only in exceptional circumstances where the evidence could not be obtained with reasonable diligence, is credible, necessary, and would importantly influence the outcome; it must not be used to fix a weak case

Court orders

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  1. 1.The application dated 18th July 2025 is dismissed with costs
  2. 2.Costs of the application to abide by the outcome of the appeal (sought but effectively superseded by dismissal with costs)

The bench

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

majority

Wrote the judgment

On appeal from
Trial court (subordinate court, not specified)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules

Relief refused

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Admission of the Kakamega County Surveyors report dated 28th May 2025 and the resultant Land Registrar's report dated 25th June 2025 as additional evidence in the appeal

The report was procured 9 months after judgment without explanation of due diligence and is an attempt to fill gaps in the appellant's case

p. 3

Costs

The application dated 18th July 2025 lacks merit and the same is hereby dismissed with costs.

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.

In the premises, I find and hold that the application dated 18th July 2025 lacks merit and the same is hereby dismissed with costs.
p. 3Final orders - dismissal of the application
Adducing new evidence should not be used as a tool to fix a weak case.
p. 2Principle against using additional evidence to patch a weak case
There is no demonstration that due diligence was applied in securing the evidence before judgment.
p. 3Failure of reasonable diligence

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, "Wakhule v Atipole (Environment and Land Appeal E045 of 2024) [2026] KEELC 1712 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 18th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1712/eng@2026-03-11

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