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Court of AppealPartially AllowedCivil Application (Nyahururu ELC Appeal No. 62 of 2018)· [2025] KECA 1985 (KLR)

Mwn & 2 others v Rwn Alias Rwm

Court of Appeal of Kenya
21 November 2025
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let an elderly woman's guardian add new evidence to a land appeal, and froze the disputed property to protect it meanwhile.

What this practically means

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Executive summary

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This is an interlocutory ruling of a three-judge bench of the Court of Appeal at Nakuru on an omnibus application dated 18th September 2025 by MWN, guardian ad litem of GWN, in an appeal against the judgment of Angima, J. of the Environment and Land Court at Nyahururu, which had allowed a claim for adverse possession of the suit property. The applicant sought a stay of execution, leave to adduce additional evidence (including a tree age assessment report, medical reports, rates receipts, letters and a copy title deed), and leave to amend the memorandum of appeal and file an amended record. The respondent opposed, arguing the mental infirmity issue arose post-judgment, the appellant had been represented throughout, and the additional evidence failed the due-diligence and relevance thresholds. Applying the Ladd v Marshall criteria as restated in Mzee Wanje v Saikwa, the Court found that the consent appointing the guardian ad litem confirmed GWN's mental infirmity, that the guardian only learned of the proceedings upon eviction, and that the new evidence was directly relevant and would cause no prejudice. The Court allowed leave for the additional evidence and a supplementary record of appeal, with the respondent given 14 days to reply. It declined the prayer to amend the memorandum of appeal as not properly before a full bench. Because the eviction had already taken place, the Court ordered that the property not be transferred to third parties and that the status quo as at 19th November 2025 be maintained. Costs of the application were ordered to abide the outcome of the appeal. The judgment binds lower courts on the sparse, case-by-case approach to admitting additional evidence on appeal.

Key legal issues

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01

Whether additional evidence should be admitted on appeal given the appellant's mental infirmity

Holding

Yes; the Ladd v Marshall criteria were satisfied because the evidence could not reasonably have been obtained at trial due to the appellant's incapacity, was relevant, and would cause no prejudice.

Reasoning

The Court held that the consent appointing GWN's guardian ad litem confirmed her mental infirmity and incapacity to manage her affairs. The guardian only became aware of the proceedings upon eviction, a fact not refuted. The new evidence was directly relevant, and the respondent was at liberty to respond. The Court balanced the significance of the evidence against expedition and prejudice, concluding the interests of justice favoured admission.

p. 4

Legal principles established

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  • An appellate court will receive additional evidence only if it could not have been obtained with reasonable diligence, would probably have an important influence on the result, and is apparently credible.
  • Additional evidence on appeal is considered case by case, sparingly and with extreme caution.
  • Judicial discretion must be exercised to serve substantial justice, guided by law and not arbitrarily.

Court orders

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  1. 1.The applicant to file and serve a supplementary record of appeal introducing the additional documentary evidence within 14 days of the ruling
  2. 2.The respondent at liberty to reply to the documents within 14 days of service
  3. 3.The property shall not be transferred to third parties and the status quo obtaining as at 19th November 2025 shall be maintained
  4. 4.The costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court, Nyahururu
ELC No. 62 of 2018 (OS)
Jurisdiction invoked
Rules 31(2), 33, 44 & 46 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwn & 2 others v Rwn Alias Rwm", Case Analysis (2025). Civil Application (Nyahururu ELC Appeal No. 62 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1985/eng@2025-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.