Runo & another v Runo

demonstrated why the evidence could not have been availed earlier or how the evidence may have a direct bearing on the appeal. He accuses the applicants of seeking a fresh trial in this court as they never produced the will during the trial, while they condoned negligence by their counsel. The respondent urges this court to dismiss the application with costs. 4. This application was heard on 19th May, 2025 on the court’s virtual platform. Learned counsel Mr. Muchangi appeared for the appellants/applicants while learned counsel Ms. Njeri Magua appeared for the respondent. 5. Counsel for the applicants submitted that the suit property was given as a gift inter vivos to the applicants, as per the wishes of the proprietor, and that the will is not voluminous to prejudice its addition into evidence. 6. The respondent’s counsel opposed the application and stated that the applicants had a duty to ensure all evidence in support of their case was produced. He urged the court to dismiss the application. 7. We have considered the record of the application, the submissions by counsel and the relevant laws. 8. This court is empowered to take additional evidence under rule 31 (1)(b) of the Court of Appeal Rules, 2022. It provides: “ 31. Power to re- appraise evidence and to take additional evidence 1. 9. On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have powera. to re-appraise the evidence and to draw inferences of fact; and b. in its discretion and for sucient reason, to take additional evidence or direct that additional evidence be taken by the trial court.” This court in Chege vs. Chege (Civil Appeal (Application) 198 of 2019) [2024] KECA 241 (KLR) (8 March 2024) (Ruling) while dealing with an application to adduce additional evidence stated: “ In Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen and Paul Fredrick Nelson [2017] eKLR, it was expressed that under rule 29(1) (a), additional evidence will be introduced on appeal in the discretion of the court, “for sucient reason”. The court further stated that: “ Though what constitutes “sucient reason” is not explained in the rule, through judicial practice, the court has developed guidelines to be satised before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. Before this court can permit additional evidence under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing, two, the new evidence would probably have had an important inuence on the result of the case if it was available at the time of the trial, and nally, that the evidence sought to be adduced is credible, though it need not be incontrovertible.” The Supreme Court of Kenya in Hon. Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamed and 3 Others (2018) eKLR, reiterated the above principles and emphasized and https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2207/eng@2025-12-11 2

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stressed that additional evidence at the appellate level should be allowed on a case-by-case basis and even then sparingly and with abundant caution.” 10. We concur with the above holding by this court. As armed by the Supreme Court additional evidence ought to be allowed sparingly on a case by case basis at the appellate level. 11. It is our considered view that the applicants herein have not met the threshold to be allowed to adduce additional evidence on appeal, to convince this court to exercise the discretion sought. We say so because the evidence sought to be adduced was always available but was omitted due to negligence. We also fault the applicants for failing to attach the judgment by the ELC. This failure negatively aected the ability of this court to appreciate the eect of the will on the proceedings at the ELC. 12. The result of the foregoing is that the application fails and is dismissed with costs to the respondent. DATED AND DELIVERED IN NYERI THIS 11TH DAY OF DECEMBER, 2025. S. ole KANTAI ................................ JUDGE OF APPEAL J. LESIIT ................................ JUDGE OF APPEAL ALI - ARONI ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2207/eng@2025-12-11 3

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