Kiunjuri v Nyahu & another (Land Originating Summons E005 of 2023) [2026] KEELC 1209 (KLR)

innocent error but an afterthought intended to cure fatal evidentially deficiencies exposed during the trial and if the application were allowed, it would prejudice the Defendants who have already tendered their evidence in rebuttal of the Plaintifi’s case. Re-opening of the case will subject the Defendants to additional costs, delay and procedural unfairness. Fourthly the introduction of the new evidence will prejudice the Defendants because it introduces new issues that have not been pleaded. Finally, the new documents will not have any impact or infiuence the outcome of the case. For the above and other reasons, the Defendants pray for the dismissal of the motion dated 28-7-2025. 4. Counsel for the parties filed written submissions dated 17-11-2025 and 24-11-2025 respectively. The only issue identified by the learned counsel for the parties is, “ whether the Plaintifi has met the legal threshold for reopening his case and introducing additional documents at this stage.” 5. According to the Defendants’ counsel, the motion fails the test for additional evidence set in the case of Raila Odinga and another vs IEBC and Others (Presidential Election Petiton No.1 of 2013). Also cited in the cause of Moses Macharia Kigo vs. The DPP and Others Civil Appeal No.E561 of 2023 where the following principles were laid down on allowing additional evidence in Appellate Courts in Kenya. a. The additional evidence must be directly relevant to the matters before the court and be in the interest of justice. b. It must be such that, if given, it would infiuence or impact upon the result of the verdict although it need not be decisive. c. It must be shown that the evidence 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 party seeking to adduce the additional evidence. d. 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. e. The evidence must be credible in the sense that it is capable of belief. f. The additional evidence must not be so voluminous making it dificult or impossible for the other party to respond efiectively. g. Where a party would reasonably have been aware of and provided further evidence in the course of trial is an essential consideration to ensure fairness and due process. h. Where the additional evidence discloses a strong prima facie case of willful deception of the Court. i. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence. The Court must find the further evidence needful. j. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in their case. k. The Court will consider the proportionality and prejudice when allowing additional evidence. This requires the Court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might have arisen from the additional evidence on the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1209/eng@2026-03-02 2

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6. There is no doubt that the Court has discretion under Order 18 rule 10 of the Civil Procedure Rules to allow the recall of any witness who has been examined. The said discretion is to be exercised within some of the eleven parameters above. Some of the parameters relate to appeals and this matter not being an appeal, those parameters have no application. The applicable ones are (a), (b), (c ), (d), (e), (f), (g), (h) and (i) only. While the Plaintifi’s case is that he is entitled to L.R. No. Loc.12/Sub-Loc.1/3578 (Original L.R. No. Loc.12/Sub-Loc.1/1567) through the doctrine of adverse possession for a period in excess of 12 years, the defence by the Defendants is that neither the Plaintifi nor his late wife Jane Wangari B. Kihara ever occupied the suit land. Secondly, the sale agreements are null and void and of no legal efiect because they are evidence of intermeddling with the estate of the deceased contrary to Section 45 of the Law of Succession Act. 7. Looking at the additional evidence sought to be adduced, I find that it is relevant to issues that arise in the suit and they will have an impact on whether there was a sale or not. Secondly, the Plaintifi has explained why the said evidence was left out. This was due to alleged omission by his shop assistant. This is not disputed by the Defendants. Further the evidence is not voluminous and it is easy for the for the Defendants to respond to it. Thirdly, the Defendants have already responded to the evidence of sale vide paragraph 5 and 7 of their replying afidavit. So they are not being taken by surprise. 8. The Constitution in Article 50(1) provides that every person has a right to a fair hearing. Locking out evidence that may assist the Court in a fair resolution of this dispute is not fair especially because the Defendants will be given a chance to rebut the additional evidence. I find merit in the motion dated 28-7-2025. The Plaintifi to avail the original evidence at the hearing. The Defendants at liberty to file and serve additional evidence in rebuttal of the additional evidence. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF MARCH, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Jackline Plaintifi’s Counsel – Mr Kimani Defendant’s Counsel – Mr. Mbue Ndegwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1209/eng@2026-03-02 3

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