Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the evidence sought could not have been obtained with reasonable diligence for use at the trial
Key legal issues
#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
The application was dismissed because the evidence sought was available at trial and could have been obtained with reasonable diligence.
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.
Whether additional evidence on appeal may be used to fill gaps or make a fresh case
No; additional evidence is admitted sparingly and with abundant caution and never to patch up weak points in an unsuccessful litigant's case.
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.
Legal principles established
#- 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
#- 1.The application seeking leave to adduce additional evidence was dismissed
- 2.Costs of the application were awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
#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.
Accordingly, the Application dated 15/4/2026 is hereby dismissed with costs.
adducing additional evidence is not a matter of right but an exercise of the Court's discretion.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.