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ELCDismissedNot stated in the judgment (appeal against judgment in Murang'a PMCC No. 290 of 1993)· [2026] KEELC 2542 (KLR)

Kamau v Gakere & 2 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 2542 (KLR)

High Court of Kenya
4 May 2026
MGM.N. Gicheru
928 words in judgment
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The bottom line

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The High Court in Murang'a refused to let an appellant add extra evidence on appeal because it was irrelevant to the case's actual issues.

What this practically means

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Executive summary

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This is a ruling of the High Court at Murang'a (M.N. Gicheru, Judge) delivered virtually on 4 May 2026 on a notice of motion dated 26 November 2025 brought by the Appellant, Francis Mwangi Hillary, under Section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules. The motion sought leave to adduce additional evidence on appeal - the certified copy of proceedings in Murang'a PMCC No. 267 of 1999 (Hannah Nduta Maina v Hillary Kibuu Kamau) - by way of a supplementary record of appeal, with costs. The appeal is against the judgment in Murang'a PMCC No. 290 of 1993, concerning land parcel Loc. 18/Marumi/40, delivered on 19 January 2000. The Appellant argued that the proceedings in PMCC 267/1999, being decided ten months later, could not have been produced in the earlier suit and were relevant because the latter case had been found res judicata. The Respondents opposed through grounds of opposition and a replying affidavit, contending the application was frivolous, did not meet Order 42 rule 27, and that the PMCC 267/1999 proceedings were never part of the earlier suit. The court framed three issues and held that although the proceedings could not have been produced earlier, the two suits involved different parties and causes of action, so res judicata could not apply; the proposed evidence was therefore irrelevant and the application frivolous, vexatious and an abuse of process, failing the Order 42 rule 27 and Section 78(1)(d) thresholds. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether proceedings in PMCC No. 267 of 1999 could have been produced in PMCC No. 290 of 1993

Holding

They could not, because the case appealed against (PMCC 290/1993) was concluded earlier, with judgment on 19-1-2000, ten months before judgment in PMCC 267/1999

Reasoning

The court found, and both sides agreed, that the older case was concluded earlier than the latter case. Since PMCC 290 of 1993 was decided on 19-1-2000 and PMCC 267 of 1999 only on 14-11-2000, the appellant could not have produced the latter proceedings as evidence in the former suit.

p. 2
02

Whether PMCC No. 267 of 1999 was res judicata by reason of PMCC No. 290 of 1993

Holding

No. The two suits involved different parties and different causes of action, so res judicata cannot apply

Reasoning

In PMCC 290/1993 the three widows of Gakere Kibuu claimed their husband's share of the suit land, while in PMCC 267/1999 Hannah Nduta Maina claimed a share for her husband Maina Kibuu, a step-brother. Gakere Kibuu was a brother to Kamiru Kibuu but Maina Kibuu was a step-brother. The parties and causes of action differed, defeating any res judicata finding.

p. 2
03

Whether the application was frivolous, vexatious and an abuse of court process

Holding

Yes, because the additional evidence is irrelevant to the issues on appeal and would not assist the court

Reasoning

The court held that the evidence sought had no bearing on the appeal. The appellant did not claim he was denied a chance to adduce his evidence and failed to prove the relevance of the proposed evidence. The motion therefore failed the thresholds in Order 42 rule 27 of the Civil Procedure Rules and Section 78(1)(d) of the Civil Procedure Act.

p. 3

Legal principles established

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  • Additional evidence on appeal must be relevant to the issues before the appellate court; evidence with no bearing on the appeal fails the Order 42 rule 27 threshold
  • The res judicata doctrine requires the same parties and the same cause of action; where these differ, the doctrine cannot apply

Court orders

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  1. 1.The motion dated 26-11-2025 is dismissed
  2. 2.Costs in the cause
On appeal from
Murang'a Principal Magistrate's Court
PMCC No. 290 of 1993
Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29 of the Civil Procedure Rules

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, "Kamau v Gakere & 2 others (Environment and Land Appeal E031 of 2025) [2026] KEELC 2542 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal against judgment in Murang'a PMCC No. 290 of 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2542/eng@2026-05-04

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