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ELCAllowedNot stated in the judgment· [2026] KEELC 2146 (KLR)

Muchanje v Njeru (Environment and Land Appeal E057 of 2024) [2026] KEELC 2146 (KLR)

Environment and Land Court
16 April 2026
ECE.C Cherono
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Embu court allowed new evidence in a land fraud appeal because it only surfaced after the original trial.

What this practically means

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Executive summary

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By a Notice of Motion dated 02/04/2025, the Applicant, Josphat Rwigi Muchanje, sought leave to adduce additional evidence on appeal concerning the alleged fraudulent transfer of land parcel Mbeere/Mbita/2233 by the Respondent. He relied on a DCI (SCCIO Mbeere South) investigative report dated 31/03/2025, a witness statement from Josphat Kiura, former Chairman of the Gachoka Land Disputes Tribunal, and a report of tribunal cases, contending that the tribunal lacked jurisdiction and that its award was fabricated, and that the evidence only became available after the trial. He also sought leave to file a certified copy of the decree and stamped annexures in a supplementary record of appeal. The Respondent opposed, arguing that the evidence was always available, the police report was inconclusive, and the application was an abuse of process aimed at delaying his enjoyment of the judgment. The parties canvassed the application by written submissions. The Court, presided over by E.C Cherono, ELC Judge, framed a single issue: whether leave should be granted to adduce additional evidence at the appeal stage. Applying Section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules and the Ladd v Marshall criteria, the Court found that the evidence post-dated the trial (judgment having been delivered on 28/11/2024), was prima facie relevant and credible, and was necessary for the just determination of the appeal. Leave was granted in the terms sought, with a 14-day timetable for the supplementary record and a corresponding right of response for the Respondent. Costs were reserved to abide the appeal.

Key legal issues

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Whether leave should be granted to adduce additional evidence on appeal

Holding

Leave granted; the evidence post-dated the trial, is prima facie relevant and credible, and is necessary for the just determination of the appeal.

Reasoning

The court applied Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, guided by Ladd v Marshall and Mohamed Abdi Mohammed. It found the DCI report and tribunal chairman's statement were prepared in March 2025, after judgment in the lower court delivered on 28/11/2024, so they could not have been obtained with reasonable diligence at trial. The evidence was relevant to ownership of the suit land, emanated from an official government agency and a person presumed to know the tribunal proceedings, and was necessary for determining the appeal.

p. 4

Legal principles established

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  • Additional evidence may be admitted on appeal where it could not with reasonable diligence have been obtained for the trial, is relevant and credible, and is necessary for the determination of the appeal in the interest of justice.

Court orders

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  1. 1.Leave granted to the Applicant to adduce additional evidence on appeal as identified in the supporting affidavit
  2. 2.The additional evidence to be adduced by way of affidavit and filed as part of a supplementary record of appeal
  3. 3.Leave granted to file and produce the final investigation report from the SCCIO Mbeere South under the DCI, together with supporting documents, relating to the alleged fraudulent transfer of land parcel Mbeere/Mbita/2233
  4. 4.Leave granted to file a certified copy of the decree in place of the uncertified copy earlier filed, and to include duly stamped annexures in the supplementary record of appeal
  5. 5.The Applicant to file and serve the supplementary record of appeal within fourteen (14) days
  6. 6.The Respondent granted corresponding leave to file a response and any additional evidence within fourteen (14) days of service
  7. 7.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 78(1)(d)
  • Civil Procedure Rules, 2010Order 42 Rules 27-29 (Order 42 Rule 27 quoted)

Cases cited (3)

  • Mohamed Abdi Mohammed versus Ahmed Abdullahi Mohammed and 3 others
    (2018) eKLR
  • Attorney General versus Torino Enterprises Ltd
    (2019) eKLR
  • Ladd v Marshall
    [1954] 1 WLR 1489
On appeal from
Trial court (lower court)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27-29 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, "Muchanje v Njeru (Environment and Land Appeal E057 of 2024) [2026] KEELC 2146 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2146/eng@2026-04-16

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