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ELCDismissedAppeal dated 11/8/2025 (Notice of Appeal dated 16/6/2025); Application dated 17/2/2026

Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)

High Court of Kenya at Nyandarua
11 June 2026
3,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The High Court in Nyandarua refused to let an appellant add new land evidence on appeal because it was available at trial.

What this practically means

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Executive summary

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This is a ruling in a first appeal at Nyandarua against the judgment of 27/5/2025 by H. Adika, Senior Principal Magistrate, who cancelled the Appellant's title to L.R No. Nyandarua/Ol-Kalou Salient/503, ordered the land to revert to Beth Gakonyo Karari as at 9th October 1998, issued a permanent injunction against the Appellant, and awarded costs to the Respondent, while dismissing the Appellant's counter-claim. Before filing the Record of Appeal, the Appellant applied for leave to adduce additional evidence - namely the parcel file for the suit land from the County Land Registrar, Nyandarua - and for leave to file a Supplementary Record of Appeal. He argued the evidence was directly relevant, credible, and could not have been obtained with reasonable diligence at trial. The Respondent opposed, contending the application was an afterthought to fill gaps in a case the Appellant had fully litigated; the green card was produced by consent and the Land Registrar could have been called at trial. Mugo Kamau J reviewed Order 42 Rule 27(1) of the Civil Procedure Rules, the Ladd v Marshall three-part test, and the expanded principles in Mohamed Abdi Mahamud, plus Court of Appeal authorities including Safe Cargo, Dorothy Nelima Wafula, Gachuki v Njenga and Mzee Wanje v Saikwa. Holding that the evidence was all along available - the Land Registrar could have been summoned at trial or an abstract of title applied for - the court dismissed the application with costs, reiterating that admission of additional evidence on appeal is discretionary, exercised sparingly, and never to patch up weak points or make a fresh case.

Questions the Court framed

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

  1. 1.Whether the Appellant should be granted leave to adduce additional evidence on appeal, namely the parcel file for L.R No. Nyandarua/Ol-Kalou Salient/503 from the County Land Registrar, Nyandarua
  2. 2.Whether the Appellant satisfied the tests in Order 42 Rule 27(1) of the Civil Procedure Rules, Ladd v Marshall and Mohamed Abdi Mahamud for admission of additional evidence on appeal
  3. 3.Whether the evidence sought could not have been obtained with reasonable diligence for use at the trial

Key legal issues

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01

Whether the Appellant met the criteria for admission of additional evidence on appeal under Order 42 Rule 27(1) of the Civil Procedure Rules and the Ladd v Marshall three-part test

Holding

The application was dismissed because the evidence sought was available at trial and could have been obtained with reasonable diligence.

Reasoning

The court applied the three-part test in Ladd v Marshall as expanded by the Supreme Court in Mohamed Abdi Mahamud: direct relevance, capacity to influence the result, and non-availability with reasonable diligence. The Appellant actively participated in the trial; the green card was produced by consent and the Land Registrar could have been summoned then. The evidence was thus all along available and the application failed the reasonable-diligence limb.

p. 8
02

Whether additional evidence on appeal may be used to fill gaps or make a fresh case

Holding

No; additional evidence is admitted sparingly and with abundant caution and never to patch up weak points in an unsuccessful litigant's case.

Reasoning

Relying on Mzee Wanje & 93 Others v A.K Saikwa and Dorothy Nelima Wafula, the court reiterated that the power to admit additional evidence is discretionary, exercised sparingly and with great caution, and must not be used to enable a party to make out a fresh case or remove lacunae and fill gaps in evidence, failing which there would be no end to litigation.

p. 7

Legal principles established

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  • A party who had the opportunity to produce evidence at trial cannot introduce it on appeal where it was all along available and could have been obtained with reasonable diligence.
  • Additional evidence on appeal is a discretionary remedy to be exercised sparingly, not a right, and cannot be used to patch up weak points or fill gaps in a case.

Court orders

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  1. 1.The application seeking leave to adduce additional evidence was dismissed
  2. 2.Costs of the application were awarded to the Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrates' Court, Ol-Kalou (Nyandarua)
null
Jurisdiction invoked
Article 164(1) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act (first appeal against judgment of the Senior Principal Magistrate); Order 42 Rule 27(1) Civil Procedure Rules for the application

Relief refused

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Leave to adduce additional evidence by summoning the County Land Registrar, Nyandarua County to produce the parcel file for L.R No. Nyandarua/Ol-Kalou Salient/503

The evidence was all along available to the Appellant at the trial; the Land Registrar could have been summoned as a witness and the evidence was not obtained with reasonable diligence

p. 8

Leave to file a Supplementary Record of Appeal

It was conditional on the application for additional evidence being allowed, which was dismissed

Costs

The application was dismissed with costs to the Respondent.

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.

I agree with the Respondent that the evidence sought to be adduced was all along available. All that was needed to be done is to have the Land Registrar summoned or call him as a witness to produce the parcel file in Court which file contains all the relevant information or in the alternative apply for an abstract of Title.
p. 8Failure of the reasonable-diligence limb of the additional-evidence test
Accordingly, the Application dated 15/4/2026 is hereby dismissed with costs.
p. 8Final orders - dismissal of the application with costs
adducing additional evidence is not a matter of right but an exercise of the Court's discretion.
p. 7Discretionary nature of admitting additional evidence on appeal

Issues in the judgment

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material

The application is described inconsistently: it is introduced as dated 17/2/2026 (filed 20/1/2026, an impossible sequence), but the final order dismisses an application dated 15/4/2026.

minor

The ruling mislabels the parties as 'Appellant' and 'Respondent' in a first-instance-originating suit that has become an appeal; the underlying parties were plaintiff and defendant before the magistrate. It also refers to the trial court's 'Counter-claim' being dismissed while the appeal sought dismissal of 'the Respondent's suit'.

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, "Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)", Case Analysis (2026). Appeal dated 11/8/2025 (Notice of Appeal dated 16/6/2025); Application dated 17/2/2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3533/eng@2026-06-11

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