Too v Sitienei (Civil Appeal (Application) 222 of 2020) [2025] KECA 1332 (KLR)
The bottom line
#Kenya's Court of Appeal refused to allow new evidence on appeal because it was filed only after the trial court's adverse ruling exposed gaps in the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to file new evidence (the complaint to the Advocates Complaints Commission and its responses) as part of the record of appeal
- 2.Whether the proposed additional evidence meets the Supreme Court principles in Mohamed Abdi Mahamud on admitting additional evidence on appeal
Key legal issues
#Whether the post-ruling complaint to the Advocates Complaints Commission qualified as admissible additional evidence on appeal
No. The applicant only lodged the complaint after the ELC Judge found no evidence supporting his fraud claim; the evidence is an attempt to make a fresh case and patch weak points, and the discretion under Rule 31(1)(b) should not be exercised in his favour.
The Court applied the Mohamed Abdi Mahamud principles, which require that additional evidence not be used to fill gaps or make a fresh case on appeal. The applicant could not explain why the complaint was not made soon after learning his advocates had entered the consent order. Lodging the complaint only after the impugned ruling showed it was a reactive attempt to cure evidential deficiencies, defeating the requirements of reasonable diligence and fairness.
Legal principles established
#- Rule 31(1)(b) of the Court of Appeal Rules empowers the Court, in its discretion and for sufficient reason, to take additional evidence on appeal, but such applications are determined on a case-by-case basis, sparingly and with abundant caution.
- A party unsuccessful at trial may not use additional evidence on appeal to make a fresh case, fill up omissions or patch up weak points in its case.
Court orders
#- 1.The application dated 2nd October 2020 seeking leave to file new evidence is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules (discretion to receive additional evidence on appeal)
Relief refused
#Leave to file new evidence (Advocates Complaints Commission complaint and responses) as part of the record of appeal
The evidence was lodged only after the ELC Judge found no proof of fraud, and is intended to make a fresh case on appeal and patch up weak points in the applicant's case
Costs
The application fails and is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This is not a proper case for the Court to exercise its discretion in favour of the applicant. The application fails and is dismissed with costs to the respondent.
It seems to us that the evidence sought to be introduced at this stage, relating to complaints with the Advocates Complaints Commission lodged after the Judge ruled there was no evidence to support his claim is intended to “make a fresh case in appeal” and to “fill up omissions or patch up the weak points in his… case.”
Rule 31(1)(b) of the Court of Appeal Rules empower the Court in its discretion, and for suficient reason, to take additional evidence.
Issues in the judgment
#The names of the parties and the appeal number are not stated in the judgment text; the parties are identified only as 'the applicant' and 'the respondent'.
Counsel for the respondent was absent at the hearing of the application, so the application was urged effectively unopposed; the judgment does not state whether the respondent filed a reply.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Too v Sitienei (Civil Appeal (Application) 222 of 2020) [2025] KECA 1332 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 2nd October 2020 in an appeal against an ELC ruling of 5th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1332/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.