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ELCDismissedELC Appeal No. E041 of 2025· [2026] KEELC 4963 (KLR)

County Government of Homa Bay v Jaleny (Environment and Land Appeal E041 of 2025) [2026] KEELC 4963 (KLR)

Environment and Land Court
29 July 2026
JWJ.W Wanyonyi
1,581 words in judgment
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The bottom line

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A Kenyan court refused to let a party call new evidence on appeal to fix gaps left at trial — prepare your case properly the first time.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (J.W. Wanyonyi, J) determines a Notice of Motion dated 16th December 2025 filed by the Respondent/Cross-Appellant alongside a Memorandum of Cross-Appeal in Appeal No. E041 of 2025, an appeal from the Chief Magistrate's Court (ELC Case No. E050 of 2023). The applicant sought leave under Order 42 Rule 27(1) of the Civil Procedure Rules to produce additional evidence on appeal by calling a valuer to give oral evidence explaining an apparent date inconsistency in a valuation report over Title No. Kanyada/Kalanya/4500. The trial court had found trespass but declined to award special damages because the valuation report appeared to have been prepared before the alleged damage. The appellant opposed, arguing there is no statutory framework for cross-appeals, that the cross-appeal was filed out of time under Section 79G without leave, and that the respondent had deliberately chosen not to call the valuer at trial. The court framed a single issue: whether the conditions for admission of additional evidence under Order 42 Rule 27 were satisfied. Applying the principles in Ernest & Young LLP v Capital Markets Authority, the court held that the evidence was not newly discovered, was available with reasonable diligence at trial, and that admitting it would allow the respondent to fill gaps in his case after judgment. The trial court's observation that the valuer should have been summoned did not itself justify reopening the case. The application was dismissed, with costs of the application to abide the outcome of the appeal and cross-appeal; the competency and timeliness of the cross-appeal were left for the hearing of the appeal.

Key legal issues

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01

Whether the additional evidence sought (oral testimony of the valuer) meets the Order 42 Rule 27 threshold

Holding

The threshold was not met; the evidence was not newly discovered and was available with reasonable diligence at trial.

Reasoning

Order 42 Rule 27 permits additional evidence only where the appellate court requires it to pronounce judgment or for other substantial cause. The valuation report existed before trial, the respondent was represented and knew of the date inconsistency, and had even addressed it in written submissions. The choice not to call the valuer was the respondent's own litigation choice, and the trial court's passing observation could not found a reopening of the case.

p. 5

Legal principles established

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  • Admission of additional evidence on appeal is an exception, not a vehicle to improve an inadequately presented case or fill gaps.
  • A litigant who elects not to call a witness at trial cannot reopen the evidentiary process on appeal merely because the trial court found the explanation wanting.
  • A trial court's observation that a witness ought to have been summoned is not itself a basis for reopening a party's case on appeal.

Court orders

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  1. 1.The Notice of Motion dated 16th December 2025 is dismissed.
  2. 2.The costs of the application shall abide the outcome of the appeal and the cross-appeal.
On appeal from
Chief Magistrate's Court
ELC Case No. E050 of 2023
Jurisdiction invoked
Order 42 Rule 27(1) and Order 51 Rule 1 of the Civil Procedure Rules (appellate jurisdiction over the Chief Magistrate's Court)

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, "County Government of Homa Bay v Jaleny (Environment and Land Appeal E041 of 2025) [2026] KEELC 4963 (KLR)", Case Analysis (2026). ELC Appeal No. E041 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4963/eng@2026-07-29

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