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ELCAllowedNot stated in the ruling (appeal from Milimani Chief Magistrate's Civil Court Civil Suit No. MCCC No. 1261 of 2005)

Mudachi v Muthama & another (Environment and Land Appeal E199 of 2025) [2026] KEELC 2501 (KLR)

High Court of Kenya
30 April 2026
2,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The High Court allowed a daughter in a Kariokor Market tenancy appeal to introduce a replacement rent card, and ordered Nairobi City County to produce original rental records within 14 days.

What this practically means

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Executive summary

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This is an interlocutory ruling by the High Court (E. K. Wabwoto, J) on a Notice of Motion dated 8th December 2025 by the Appellant in an appeal from the Milimani Commercial Magistrates Court (MCCC No. 1261 of 2005). The underlying suit concerned tenancy rights over Stall No. 197 at Kariokor Market, Nairobi, originally rented by the defunct Nairobi City Council to the late Mary Nthoki Mwongela, mother of the litigating sisters. By judgment of 5th September 2025 the Magistrate found the Plaintiff's original rent card (P. Exhibit No. 1) proved the mother's tenancy, that neither daughter held a proprietary interest, discredited the County's claim that the Appellant was its tenant for lack of documents (noting 'fraudulent connivance'), dismissed the suit, and ordered each party to bear its own costs. The Appellant's ten-ground appeal challenges the evaluation of the rent card, burden of proof, and failure to consider her documentary evidence. Her motion sought an order compelling the County to produce the original rental card No. 308 and leave to adduce additional evidence, including a replacement rental card No. 170. Applying Order 42 Rule 27(1) and the Mohamed Abdi Mahamud principles, and holding the County's uncontroverted affidavit material deemed admitted, the Court found the application meritorious: the County was ordered to produce the original rental card No. 308 and related documents within 14 days (or file an explanatory affidavit in default); the Appellant was granted leave to adduce the replacement card and any documents produced, to be filed as a Supplementary Record of Appeal within 21 days; Respondents may respond within 14 days thereafter; costs were in the cause.

Questions the Court framed

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

  1. 1.Whether the Court should exercise its discretion to compel production of documents by the 2nd Respondent
  2. 2.Whether leave should be granted to the Appellant to adduce additional evidence in the appeal

Key legal issues

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01

Whether to compel the County to produce original rental records

Holding

Production was ordered because the County, as successor to the original lessor and custodian of rental records, has a duty to produce originals for verification, and production was necessary under Order 42 Rule 27(1)(b) to enable the Court to pronounce judgment.

Reasoning

The Court noted the 2nd Respondent, as custodian of the official records, did not file a formal response and its averments regarding the trial court's directions and materiality of the documents therefore stood uncontroverted. Compelling production was necessary to enable the Court to properly adjudicate the tenancy dispute, and denial would undermine the Appellant's fair-hearing rights. A default affidavit mechanism was built in.

p. 4
02

Whether leave should be granted to adduce additional evidence on appeal

Holding

Leave was granted because the proposed evidence (the replacement rental card) is directly relevant, credible, could not have been obtained with reasonable diligence at trial, would probably have an important influence on the outcome, and causes no prejudice to the Respondents.

Reasoning

Applying the Mohamed Abdi Mahamud principles and Order 42 Rule 27(1)(b), the Court found the trial judgment turned on the rent card P. Exhibit No. 1 and the absence of alternative documentary proof from the Appellant. The Applicant's inability to retrieve the replacement card in time for the 24th April 2025 hearing stood uncontroverted, the evidence addresses the very evidentiary gap the Magistrate identified, and admission enables the first appellate court to re-evaluate the evidence afresh.

p. 4
03

Effect of the 2nd Respondent's failure to file a formal response

Holding

The Applicant's averments were deemed admitted since the 2nd Respondent opposed only through oral submissions.

Reasoning

The Court reaffirmed the settled principle that uncontroverted affidavit material is deemed admitted, citing Mukisa Biscuit and Kenya Ports Authority v Modern Construction. It criticized the County's 'casual engagement' with the interlocutory application despite being the custodian of the official records sought, and accepted the Applicant's averments on diligence, loss of documents, and materiality.

p. 3

Legal principles established

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  • Additional evidence on appeal is admitted only sparingly and judiciously, where it is directly relevant, would influence the result, and could not with reasonable diligence have been obtained for the trial.
  • Where a party fails to file a replying affidavit or otherwise specifically controvert the material averments in a supporting affidavit, those facts are deemed admitted.
  • Additional evidence is not permitted merely to patch up a weak case or fill gaps, but only for substantial cause where justice demands it.

Court orders

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  1. 1.The 2nd Respondent shall, within 14 days of delivery of the Ruling, produce to the Court and serve on all parties the original rental card No. 308 dated 2nd May 1978 and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197; in default, file an affidavit explaining the reasons and steps taken
  2. 2.Leave granted to the Appellant/Applicant to adduce additional evidence, namely the duplicate replacement rental card No. 170 (or original where available) annexed as MMM-2 and any original documents produced by the 2nd Respondent pursuant to order 2, to be filed and served as a Supplementary Record of Appeal within 21 days
  3. 3.The Respondents may, if so advised, file any response within 14 days thereafter
  4. 4.Costs of the application shall be in the cause

The bench

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

majority

Wrote the judgment

On appeal from
Milimani Commercial Magistrates Court
MCCC No. 1261 of 2005
Jurisdiction invoked
Sections 1A, 3, 3A, 78(1)(d) & (2) and 100 of the Civil Procedure Act (Cap. 21); Order 51 Rule 1 and Order 42 Rule 27(1) of the Civil Procedure Rules 2010; Articles 50, 25, 50(1) and 159 of the Constitution of Kenya 2010

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.

The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred
p. 3General prohibition on additional evidence on appeal - Order 42 Rule 27(1)
The additional evidence must be directly relevant to the matter and in the interest of justice.
p. 3Mohamed Abdi Mahamud principles for admission of additional evidence
Additional evidence is not permitted merely to patch up a weak case or fill gaps, but only for substantial cause where justice demands it.
p. 3Limits of the additional-evidence discretion
where a party fails to file a replying afidavit or otherwise specifically controvert the material averments contained in a supporting afidavit, those facts are deemed to have been admitted
p. 3Uncontroverted affidavit evidence deemed admitted
The 2nd Respondent shall, within 14 days of delivery of this Ruling, produce to this Court and serve on all parties the original rental card No. 308 dated 2nd May 1978 and any other original or relevant documents in its custody relating to the tenancy of Kariokor Market Stall No. 197.
p. 5Final orders - compelled production of documents
The Appellant/Applicant is granted leave to adduce additional evidence, namely: (a) the duplicate replacement rental card No. 170 (or original where available) annexed as MMM-2; and (b) any original documents produced by the 2nd Respondent pursuant to order 2 above.
p. 5Final orders - leave to adduce additional evidence
The costs of the application shall be in the cause.
p. 5Costs order

Issues in the judgment

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minor

The ruling refers to the notice of motion as 'dated 8th December 2025' and states the appeal was lodged on 3rd October 2025, yet the application seeks to adduce a replacement rental card the Applicant 'has since retrieved' after the 24th April 2025 hearing; the chronology is internally consistent but the judgment is dated 2026 while describing an application from late 2025, which practitioners should verify against the filed motion.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mudachi v Muthama & another (Environment and Land Appeal E199 of 2025) [2026] KEELC 2501 (KLR)", Case Analysis (2026). Not stated in the ruling (appeal from Milimani Chief Magistrate's Civil Court Civil Suit No. MCCC No. 1261 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2501/eng@2026-04-30

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