Wafula v Wang'undu

4. The appellant, dissatised, lodged a second appeal to this Court on a date which is not clear from the record. The appellant led a memorandum of appeal dated 26th November 2025 contending that: i. The learned judge erred in law by failing to hold that the appellant’s application in the subordinate court was made in good faith and without any delay. ii. The learned judge erred in law when she failed to hold that the application in the subordinate court was made when the respondent had closed her case. iii. The learned judge erred in law by holding that the application was made after 7 years, yet the appellant became aware of the suit in the year 2017 when the expert judge (sic) on record was set aside. iv. The learned judge erred in law in holding that the trial magistrate applied his discretion in dismissing the appellant's application yet it was not made to reopen the case. v. The judge erred in law and fact by holding that the application was made after 7 years yet the suit in the lower court commenced in the year 2021. vi. The judge erred in law that there was no pre-trial directions in the subordinate court and the proceedings were still open to the parties hence the appellant’s application was made in good faith and timely (sic). vii. The judge erred in law by holding that the respondent had already testied yet the respondent’s suit was still ongoing and eradication (sic) of additional document was apparent mount (sic) and in the interest of justice for just determination of the case. 5. On 23rd July 2026, this Court directed that the appeal be heard on a priority basis, upon being informed that the suit in the subordinate Court was scheduled for hearing on 1st September 2026. The parties were ordered to le and exchange submissions. The appellant led submissions dated 13th July 2026, and the respondent led submissions dated 7th August 2026. 6. We heard the appeal on 7th August 2026. The appellant appeared in person, while learned counsel Mr Wanjala held brief for learned counsel Mr. Bw’Onchiri for the respondent. The parties made brief oral highlights of their submissions. 7. The appellant’s oral and written submissions went into factual details, but the thrust of her submissions was that the respondent had used the court process to frustrate her and that the additional evidence sought to be introduced was to assist the subordinate court to establish the truth. Further, that the appellant had availed all the documents to her then advocates, who did not lodge them in good time. 8. The respondent, on her part, submitted that the appeal had no merit because the appellant had not demonstrated any error of law or principle on the part of the High Court. 9. According to the respondent, and nding solace in Patrick James Mbogo & Anor v Bank of Africa (2020) eKLR, it was incumbent upon the appellant to demonstrate that in exercising its discretion, the High Court had acted on matters it should not have acted on or failed to take into consideration matters which it should have, but she had failed to meet the threshold. In this respect, it was submitted that both the subordinate court and High Court had considered the delay in making the application to introduce new evidence, the stage the proceedings had reached and the prejudice likely to be suered because the respondent had already testied. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28 2

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10. The respondent further contended that the appellant had not established sucient cause or explained the delay in moving the subordinate court and cited a passage from Govani v Shah & Anor; Ja (Third Party) (2024) KECA 1775 (KLR) that: “ ...it behoves a party who is in default, and who seeks the court’s discretion, to place relevant material before the court to satisfy the court that despite his/her omission, discretion should nevertheless be exercised in his/her favour.” 11. In this regard, the respondent urged that the documents that the appellant had sought to introduce into evidence had been available to her when she led her defence and counterclaim in 2017. 12. Lastly, the respondent asserted that the appellant could not lay blame at the feet of her erstwhile advocates and reference was made to Habo Agencies Ltd v Wilfred Odhiambo Musingo (2015) KECA 987 (KLR). 13. We have considered the appeal and submissions. This is a second appeal, and our mandate has been crystallised in a succession of authorities. In Kenya Breweries Ltd v Godfrey Odoyo (2010) eKLR, this Court stated: “ In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, connes itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 14. We will keep the above caution in mind. 15. We will start with an examination of the case law on the introduction of additional documents before a trial court. In Kibisu v Sangale (2024) KEHC 8502 (KLR), the court relied on Order 18 Rule 10 of the Civil Procedure Rules to nd that because the applicant had yet to close her case and would have the opportunity to look at the additional evidence and cross-examine witnesses, the respondent therein would not suer any prejudice if an order to allow the introduction of additional evidence was allowed. 16. In City Classic Enterprises Ltd & 3 Ors v the Chief Ocer, Finance, County Government of Wajir & 2 Ors (2024) KEHC 15785 (KLR), the High Court cited section 146(4) of the Evidence Act that allows a court to recall a witness who had been examined to hold that a court had a discretionary power to recall a witness. The court further stated that the principles to consider before exercising the discretion were that the evidence to be introduced was not within the knowledge of the applicant upon the exercise of due diligence at the time of hearing; the evidence was not meant to ll in gaps in the applicant’s case; the new evidence was not prejudicial to the rival party and that the interests of justice favoured the introduction of such evidence. 17. Within the context of an appeal, this Court held in Samuel Kangu Kamau v R (2015) eKLR, that: “ …it has been said time and again that the unfettered power of the court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make signicant impact in the determination of the appeal…” 18. The Supreme Court gave the ultimate guidance on the exercise of the discretion to allow additional evidence in Mohammed Abdi Mohamud v Ahmed Abdullahi Mohammed & Ors (2018) eKLR to the eect that: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28 3

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i. “The additional evidence must be directly relevant to the matter before the court and is in the interest of justice. ii. It must be such that, if given it would inuence or impact upon the result of the verdict, although it need not be decisive. iii. It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the part seeking to adduce the additional evidence. iv. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit. v. The evidence must be credible in the sense that it is capable of belief. vi. The additional evidence must not be so voluminous making it dicult or impossible for the other party to respond eectively. vii. Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process. viii. Where the additional evidence discloses a strong prima facie case of wilful deception of the court. ix. The court must be satised that the additional evidence is not utilised for purposes of removing lacunae and lling gaps in evidence. The court must nd the further evidence needful. x. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case in appeal, ll up omissions or patch up the weak points in his/her case. xi. The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the signicance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 19. It is not our understanding that the guidelines given by the Supreme Court ought not to be ticked individually against a check-box. Each case ought to be determined based on the obtaining circumstances, as not all the guides given would all apply in all cases. Some apply in instances where a party seeks to introduce additional evidence at the trial stage and some at the appellate stage. 20. We have looked at the record of appeal. It shows that the respondent commenced suit before the subordinate court on or around 9th September 2015, and an interlocutory judgment was entered against the appellant on a date in 2016 which is not clear, for failure to enter an appearance. The appellant moved to have the interlocutory judgment set aside in 2017, and it was set aside by the consent of the parties on 27th April 2017. 21. Thereafter, the hearing commenced on 12th August 2018 when the respondent testied, and the hearing was adjourned to 26th October 2021, to allow the respondent to call another witness. The hearing did not proceed because the respondent’s witness had been involved in an accident and was not available. The hearing was rescheduled to 24th February 2022. 22. On 24th February 2022, the appellant informed the court that she wanted to make a formal application to introduce additional documents. The appellant was allowed time to le a formal application. An application dated 19th March 2022 was led. Regrettably, a copy of the application was not part of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28 4

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the record placed before us, probably arising from the fact that the appellant was acting in person. This notwithstanding, it is evident from the ruling of the subordinate Court and judgment of the High Court that the appellant’s prayers in the application dated 19th March 2022 were to introduce a copy of a charge sheet where she was charged with a criminal oence at the behest of the respondent, copies of the criminal court proceedings wherein she was discharged, and a copy of Mpesa statements to show that she had loaned the respondent money and not the other way round, as contended by the respondent. 23. As indicated earlier, the subordinate Court dismissed the application on 25th November 2022, and this prompted the appeal to the High Court, which upheld the ruling by the subordinate court and dismissed the appeal on the grounds that the respondent had already testied without anticipation of new evidence being introduced; the new evidence had been available to the appellant before the commencement of the hearing; prejudice was likely to be occasioned to the respondent and delay of 7 years. 24. From the record, the following summations arise. The respondent had indeed testied by the time the appellant made the application to introduce new documents. But she had not called any additional witnesses or closed her case. 25. Closely intertwined with the stage the proceedings had reached is the issue of prejudice. The record shows that although the respondent had testied, she had not closed her case. In the circumstances, there would have been no or minimal prejudice caused to the respondent, which in any event could have still be addressed by way of costs. The respondent could still be recalled to speak to the new documents and later on cross-examine the appellant on the document. We also observed from the record, that the documents the appellant was seeking to introduce, namely a copy of the charge sheet, proceedings and of an Mpesa statement were not bulky. 26. It is also true that the appellant sought to introduce new documents 7 years after the initiation of the suit, but it is equally true that even though the suit was instituted in 2015 as held by the subordinate Court and High Court, the appellant was only made aware of the proceedings and became a participant in 2017, 2 years later, the hearing commenced and the respondent testied in August 2021, and the appellant thereafter moved the subordinate Court in March 2022. That there was a delay in the hearing and conclusion cannot be disputed. However, the record does not suggest that the appellant was responsible for the delay in the commencement of the hearing, and it was therefore not reasonable for the cause of the delay to be visited upon her. 27. From our assessment of the record and applicable case law, we accordingly nd that there are grounds to interfere with the exercise of discretion by the subordinate Court and High Court in rejecting the appellant’s quest to introduce additional documents at the stage the proceedings had reached. 28. Consequently, we allow the appeal, set aside the judgment of the High Court, and make the following orders: a. The appellant’s application dated 19th March 2022 to le additional documents out of time is allowed. b. The respondent shall have the costs of the proceedings in the subordinate Court related to the hearing of the application dated 19th March 2022. c. Each party shall bear their own costs of the proceedings in the High Court and in this Court. d. The hearing in CMCC No. 486 of 2015 in the subordinate Court shall proceed before a dierent magistrate other than Hon. C.A.S. Mutai (SPM). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28 5

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29. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 28TH DAY OF AUGUST, 2026. P. NYAMWEYA …………………………… JUDGE OF APPEAL R. NGETICH …………………………… JUDGE OF APPEAL RADIDO S. OKIYO …………………………… 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/2026/2017/eng@2026-08-28 6

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