Kenya National Highways Authority v Abdul Waheed Sheikh & Abdul Hameed Sheikh (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) & 2 others

iv. THAT the Applicant be at liberty to apply for further orders and/or directions as this honourable court may deem just and expedient to grant. v. Costs of the application. 2. The application was premised on grounds as in the supporting affidavit of Eliud Munene. He deponed that the judgement delivered on the 9th September 2025 in tribunal was arrived at with concealment of facts that there was a pending case that is ELC 102 of 2008 where the dispute was on the ownership of the property. That this information was not at the disposal of the Applicants at the time of the judgement which information will be relevant in giving reasons why the compensation to the Applicants should be halted . That the 1st Respondent having failed to disclose this to the court , it was necessary to entertain the application and have the Applicants heard on the evidence they tend to produce. 3. The application was opposed by the 1 st Respondent who filed a replying affidavit sworn by Abdul Waheed Sheikh. 4. He deponed that the evidence that the Applicant seek to produce was available to the public and was not just limited to the parties in ELC 102 of 2008 and the Applicants being aware of the dispute as they had indicated in their pleadings, should have ensured they had the pleadings form part of their evidence in the tribunal if indeed there was relevant material that they thought would aid their case. 5. He further deponed that the application was majorly founded on the claims of there being a dispute on ownership on the suit property in ELCLA E192 OF 2025 R 2

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n ELC 102 of 2008 which suit had been heard and determined via the judgement of 26th February 2026 and the court had dismissed the third party’s claims for any proprietary rights on the suit property, and hence the basis for wanting to adduce new an additional information since there was nothing pending in court. 6. The 3rd Respondent filed a replying affidavit sworn by Brian Ikol supporting the 1st Respondent’s case pointing to the fact that the Applicants had every opportunity to present the documents and cannot try to produce the same at an appellate stage. Submissions 7. The Applicant filed submissions dated 7th September 2026 and reiterated the contents in their supporting affidavit indicating that the additional document would shed light as to why the judgement of the tribunal should be halted in regard to compensation of the 1 st Respondent. They indicated that the application met the conditions that are necessary in allowing for additional evidence relying in the case of Mohamed Abdi Mahamud -Vs- Ahmed Abdullahi Mohamad & 3 others (2018) eKLR 8. The 1st Respondent filed submissions dated 7th September 2026 reiterating the contents in their replying affidavit. Counsel insisted that the application was now baseless with the delivery of judgement in ELC 102 of 2008 by Justice Angote which the Applicants relied on as basis for their wanting to produce additional documents. That the very the issue of their being a contention on ELCLA E192 OF 2025 R 3

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ownership had been addressed and the court found the claims by the other party baseless attributing ownership to the 1st Respondent The 1st Respondent further submitted that the application was an abuse of the court process, the Applicants having tried to be enjoined severally but failing indicating that at some point litigation has to come to an end and hence ought to be dismissed with costs to the 1st Respondent. 9. That further a party who has been unsuccessful at trial must not be permitted to adduce additional evidence to make a fresh case on appeal, to fill up omissions, or to patch up the weak points in its case relying in Mohamed Abdi Mahamud -Vs- Ahmed Abdullahi Mohamad & 3 others (supra);and that the additional evidence jurisdiction exists to prevent injustice, not to afford a defeated litigant a second opportunity to plead its case differently. Analysis and determination 10. I have reviewed the application for leave to adduce additional evidence, the reply by the 1 st Respondent and the submissions of both parties and do hold that the issues for determination are as below; i. Whether this Court has the legal basis to admit additional evidence at the appellate stage. ii. Whether the Applicant has satisfied the threshold for admission of additional evidence on appeal. 11. In the exercise of its appellate jurisdiction under section 78(1) (d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil ELCLA E192 OF 2025 R 4

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Procedure Rules, and guided by Articles 50(1) and 159(2)(d) of the Constitution, the Court is required to ensure a fair hearing while administering justice without undue regard to procedural technicalities. The statutory framework permits an appellate court, in appropriate circumstances, to receive additional evidence or to direct that such evidence be taken, subject to the careful and sparing exercise of judicial discretion. 12 2 10. Against that statutory framework, the Court is satisfied that it has the jurisdiction to entertain the present application. 12. The principles governing admission of additional evidence at the appellate stage were authoritatively set out by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] KESC 62 (KLR). The Court held that additional evidence may be admitted where it is directly relevant to the matter before the court, where it is capable of influencing the outcome, where it could not with reasonable diligence have been obtained at trial, where it removes doubt over a central issue, where it is credible, and where it is not intended to fill gaps or patch up weak points in a party’s case. 13. Applying those principles to the present matter, the additional evidence ought to be adduced, are the pleadings from ELC 102 of 2008. The Applicant avers that the existence of the said matter which was not in the knowledge of the tribunal, brings about the question of ownership. This being the case then means the Applicant cannot enforce the judgement in favour of the 1st ELCLA E192 OF 2025 R 5

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Respondent as the ownership of the suit property is yet to be ascertained and therefore the evidence relevant and capable of influencing the outcome of the appeal. 14. The 1st Respondent has argued that the Applicants are relying on the existence of the dispute in ELC 102 of 2008 which dispute they state has been determined by the court and the argument advanced on the basis of contention on ownership being the ground for production of the additional evidence is therefore baseless. I have perused the said judgement attached to the replying affidavit as annexure ‘AWS-3 and do note the court dismissed the claims of the other party that were claiming proprietary rights as against the claims of the 1st Respondent on the basis of adverse possession. This therefore means that issue of there being an ownership dispute is therefore null and void. 15. The documents sought to be produced will not aid this trial court in coming up with the decision in the appeal. For the foregoing reasons, I am not persuaded that the threshold for adducing new evidence has been met and I decline to allow the Appellants/Applicants to adduce additional evidence. Final disposition In view of the foregoing discourse, I make the following orders i. The Notice of Motion application dated 12th February 2026 is without merit and is hereby dismissed. ii. Costs of the application shall abide the outcome of the appeal ELCLA E192 OF 2025 R 6

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It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 24th day of September 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Ochieng for the Plaintiff/Applicant Mr. Okwach for the 1st and 2nd Respondents N/A for the 3rd Respondent Ms. Mwangi Court Assistant ELCLA E192 OF 2025 R 7

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