Murungi v Mwandiki (Environment and Land Appeal E091 of 2024) [2026] KEELC 2110 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to let an appellant introduce new evidence on appeal because he could have obtained all of it earlier from public registries.
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 application dated 26/11/2025 meets the criteria for admitting additional evidence at the appellate stage
- 2.Whether the proposed additional evidence could not have been obtained with reasonable diligence for use at trial
- 3.Whether Times U Sacco Society Limited, holding a charge over the suit title, is a necessary party to the appeal
Key legal issues
#Jurisdiction and criteria for admission of additional evidence on appeal
The jurisdiction is donated by Section 78(1) of the Civil Procedure Act and regulated by Order 42 rules 27–29 of the Civil Procedure Rules, guided by the Supreme Court's criteria in Mohamed Abdi Mahamud: direct relevance, capacity to influence the verdict, and proof that the evidence could not have been obtained with reasonable diligence.
The court set out the statutory framework and the Supreme Court's enumerated criteria, which include direct relevance, potential impact on the verdict, inability to obtain the evidence with reasonable diligence, credibility, non-voluminousness, and proportionality as between the significance of the evidence and the need for swift litigation free of prejudice.
Whether the applicant exercised reasonable diligence in obtaining the proposed evidence
No. Each item of evidence — the charge sheet, criminal judgment, advocate's letter, transmission documents, succession documents and criminal proceedings — was available from public registries and court files, and the applicant produced no evidence of formal requests that were refused.
The applicant was a complainant and witness in the criminal case, so he knew of the charge sheet and judgment; certified copies were obtainable from the Criminal Court Registry, the Land Registry and the Deputy Registrar of the High Court. No formal request or refusal was proved, and the advocate's letter of 20/11/2025 was written long after the impugned judgment.
Joinder of Times U Sacco Society Limited as a necessary party
The court raised sua sponte that a charge of Kshs 1,700,000 in favour of the Sacco subsists against the suit title; allowing the appeal without the Sacco's participation would effectively annul a title held by it as security in its absence, so parties will be heard on whether it is a necessary party.
While disposing of the application, the court noted that the title subject of the appeal is charged to Times U Sacco Society Limited. Success in the appeal would annul a title held by the Sacco as security without it being heard. The court accordingly reserved the question of joinder for further directions.
Legal principles established
#- There would be no end to litigation unless a party is required by law to put his full case before the court during trial; courts are stringent in allowing a party to reopen a case through admission of additional evidence at the appellate stage.
- An applicant for leave to adduce additional evidence on appeal must demonstrate, in respect of each item of evidence, that it was impossible to obtain it upon exercise of reasonable diligence.
- Omission by a party's previous advocate to tender evidence the party desired to tender is not a ground for admitting additional evidence at the appellate stage.
Court orders
#- 1.The application dated 26/11/2025 is dismissed for lack of merit
- 2.The applicant/appellant shall bear costs of the application
- 3.The court will give the parties an opportunity to address it on the question whether Times U Sacco Society Limited is a necessary party in this appeal, on a mutually convenient date to be set by the court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nkubu Senior Principal Magistrate's Court
- Nkubu SPMC E & L Case No 29 of 2019
- Jurisdiction invoked
- Section 78(1) of the Civil Procedure Act; Order 42 rules 27, 28 and 29 of the Civil Procedure Rules
Relief refused
#Leave to adduce additional evidence at the appellate stage (charge sheet, judgment, letters, succession-cause documents, transmission documents and proceedings in Nkubu SPMC Criminal Case No 648 of 2018)
The applicant failed to demonstrate that the evidence could not have been obtained with reasonable diligence at the time of trial; each piece of evidence was available from public registries and court files.
Costs
The applicant/appellant shall bear costs of the application, in tandem with the general principle in Section 27 of the Civil Procedure Act.
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.
The totality of the foregoing is that the applicant has failed to meet the criteria upon which an appellate court would allow a party to introduce new evidence at the appellate stage.
there would be no end to litigation unless a party is, by law, required to put his full case before the court during trial
the applicant/appellant shall bear costs of the application
Consequently, the court will give the parties an opportunity to address it on the question as to whether the said Sacco is a necessary party in this appeal.
Issues in the judgment
#The respondent's submissions and paragraph 15 attribute the additional-evidence principles to differently spelled case names; the court itself cites 'Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR' while the parties cite 'Mohamud v Muhamad & 3 others' and 'Mahamud v Mohamad & 3 others'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murungi v Mwandiki (Environment and Land Appeal E091 of 2024) [2026] KEELC 2110 (KLR)", Case Analysis (2026). Nkubu SPMC E & L Case No 29 of 2019 (Appeal) — Notice of Motion dated 26/11/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2110/eng@2026-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.