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ELCPartially AllowedNot stated in the ruling (notice of motion dated 21-7-2025 in an appeal from the lower court)· [2026] KEELC 1966 (KLR)

Mutuku v Karugah (Land Case Appeal E034 of 2024) [2026] KEELC 1966 (KLR)

High Court of Kenya
13 April 2026
1,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the High Court at Murang'a (M.N. Gicheru J) determines a notice of motion dated 21-7-2025 brought by the Appellant in an appeal from a lower court, seeking leave to file additional evidence and a supplementary record of appeal. The motion was brought under Section 78 of the Civil Procedure Act, Sections 2A and 3A, and Orders 42 rules 27 and 28 and Order 5 rule 1 of the Civil Procedure Rules 2010. The Appellant argued that the additional evidence was necessary to rebut issues of fact and that no prejudice would befall the Respondent. The Respondent opposed, contending the application was incompetent, the annexed documents illegible or merely regurgitated evidence, and that the Order 42 threshold had not been met. Counsel filed written submissions; the Respondent's counsel framed two issues while the Appellant's counsel framed none, prompting the court to frame six issues itself under Order 15. The court found the Appellant would be prejudiced if the motion was refused because his case was closed on 23-4-2024 before all his evidence was adduced - one witness having died and another become recalcitrant amid adjournments attributable to both sides and the court. It acknowledged delay prejudiced the Respondent, the registered but non-occupying owner, but held the Appellant met the Order 42 conditions since the lower court had refused to admit evidence that should have been admitted. It also found the record of appeal incomplete and cumbersome under Order 42 rule 13. The motion was allowed in terms of prayers 1 and 2, with costs in the cause.

Key legal issues

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01

Whether the Appellant met the conditions for production of additional evidence on appeal under Order 42 rules 27 and 28

Holding

The Appellant met the conditions because the lower court refused to admit evidence which should have been admitted

Reasoning

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.

p. 3
02

Whether the record of appeal is complete

Holding

The record is incomplete and cumbersome, containing irrelevant material and omitting material that should have been included under Order 42 rule 13

Reasoning

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.

p. 3
03

Whether the Respondent would be prejudiced if the application were allowed

Holding

Any delay prejudiced the Respondent because although registered owner, he is not in occupation; the Appellant is in occupation and gains by delay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Appellant be allowed to file additional evidence (prayer 1 allowed)
  2. 2.The Appellant be allowed to file a supplementary record of appeal (prayer 2 allowed)
  3. 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

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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, "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.