Mutuku v Karugah (Land Case Appeal E034 of 2024) [2026] KEELC 1966 (KLR)
The bottom line
#Kenya's High Court allowed an appellant facing eviction from occupied land to add extra evidence on appeal after his witnesses died or refused to testify.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant met the conditions for production of additional evidence on appeal under Order 42 rules 27 and 28
The Appellant met the conditions because the lower court refused to admit evidence which should have been admitted
The court found the Appellant was prejudiced at trial: his case was closed before all his evidence was adduced on 23-4-2024. Adjournments between 12-4-2023 and 23-4-2024 were caused by both sides and the court; one witness died and another became recalcitrant. In those circumstances, the failure to testify was not the Appellant's fault, and he should have been allowed to call other evidence in their place.
Whether the record of appeal is complete
The record is incomplete and cumbersome, containing irrelevant material and omitting material that should have been included under Order 42 rule 13
The court listed the mandatory contents of a record of appeal under Order 42 rule 13 (memorandum of appeal, pleadings, magistrate's notes, transcripts, all documents put in evidence, and the judgment/order appealed from). It found the current record contained irrelevant notices of motion, affidavits and rulings, while pleadings and accompanying documents were improperly excluded, justifying a supplementary record.
Whether the Respondent would be prejudiced if the application were allowed
Any delay prejudiced the Respondent because although registered owner, he is not in occupation; the Appellant is in occupation and gains by delay
The court weighed the parties' positions: the Respondent holds title but does not occupy the land, while the Appellant occupies it. Delay therefore benefits the Appellant and burdens the Respondent, but the court nonetheless found the interests of justice favoured allowing the additional evidence given the circumstances at trial.
Legal principles established
#- Where a trial is one in which a party faces eviction from land he occupies, all available evidence should be adduced, and where witnesses died or refused to testify through no fault of the party, that party should be allowed to call replacement evidence
- The record of appeal must contain only the material specified in Order 42 rule 13 of the Civil Procedure Rules - pleadings, notes of the trial magistrate, evidence documents and the judgment/order appealed from - excluding irrelevant motions and rulings
Court orders
#- 1.The Appellant be allowed to file additional evidence (prayer 1 allowed)
- 2.The Appellant be allowed to file a supplementary record of appeal (prayer 2 allowed)
- 3.Costs in the cause
- On appeal from
- Lower court (magistrates' court, not named)
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act; Sections 2A and 3A of the Civil Procedure Act; Orders 42 rules 27 and 28 and Order 5 rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuku v Karugah (Land Case Appeal E034 of 2024) [2026] KEELC 1966 (KLR)", Case Analysis (2026). Not stated in the ruling (notice of motion dated 21-7-2025 in an appeal from the lower court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1966/eng@2026-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.