Kanyi v Registered Trustees of the Archdiocese of Nyeri (Sued as proprietors of Consolata Hospital) & another (Civil Appeal (Application) E117 of 2021) [2026] KECA 137 (KLR)
The bottom line
#The Court of Appeal refused to allow new medical evidence in an ongoing appeal because the evidence could have been presented during the original trial.
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 additional/new evidence in the pending appeal
- 2.Whether the proposed medical report, hospital letter and photograph meet the Mahamud vs. Mohamad guidelines for admission of additional evidence on appeal
Key legal issues
#Whether the proposed evidence meets the reasonable-diligence test for additional evidence on appeal
The application fails because the evidence of ongoing medical expenses could and should have been adduced at trial; future treatment was pleaded and evident throughout the High Court proceedings
The applicant had pleaded future medical expenses in successive amended plaints and stated in witness statements that he continued to incur expenses. Medical reports were produced at trial and doctors testified. The court found the applicant had every opportunity to adduce the material before conclusion of the trial, so the evidence is not 'new' and admitting it would fill gaps in his case contrary to the Mahamud guidelines.
Whether the court should exercise its discretion in favour of the applicant
This is not a proper case for the discretion to be exercised in favour of the applicant; the application is dismissed
Applying the Mahamud principles, the court held the proposed evidence was obtainable with reasonable diligence, and the Supreme Court had stressed that additional evidence is admitted sparingly and with abundant caution. The belated evidence, aimed at supporting the claim for future medical expenses, did not satisfy the guidelines, and the discretion could not properly be exercised for the applicant.
Legal principles established
#- The Court of Appeal has power under rule 31(1)(b), in its discretion and for sufficient reason, to take additional evidence or direct that it be taken by the trial court, guided by the Mahamud principles
- Additional evidence on appeal is allowed only sparingly and on a case-by-case basis with abundant caution
- Evidence that a party could reasonably have obtained in the course of trial does not qualify for admission as additional evidence on appeal
Court orders
#- 1.The application for leave to file additional/new evidence is dismissed
- 2.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Civil Suit No. 1766 of 2002
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 31(1)(b) of the Court of Appeal Rules
Relief refused
#Leave to file additional/new evidence (medical report by Africa Medspa, letter from Nyeri County Referral Hospital, and photograph of the applicant's leg) in the appeal
The evidence relates to future medical expenses which the applicant could reasonably have obtained with due diligence at trial; allowing it would patch up weaknesses in his case
Costs
Each party bears its own costs of the application
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, in our view, is not a proper case for the court to exercise its discretion in favour of the applicant. Consequently, the application fails and it is hereby dismissed.
Given the unfortunate circumstances, we order that each party bears its own costs of the application.
this court even with the application of the abovestated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.
The applicant had every opportunity to adduce whatever additional evidence, including the material he now belatedly wishes to adduce, before the conclusion of the trial before the High Court.
Issues in the judgment
#The judgment does not state the memorandum of appeal number or the names of the second respondent; the case number field is inferred from the underlying High Court suit referenced in the judgment
The Court of Appeal appeal number against the High Court judgment is not given anywhere in the ruling
Quoted passages from Mahamud vs. Mohamad carry an internal numbering anomaly - the principles are lettered (a) to (k) but the closing paragraph is numbered '80' within the quotation, suggesting an extract from the source judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanyi v Registered Trustees of the Archdiocese of Nyeri (Sued as proprietors of Consolata Hospital) & another (Civil Appeal (Application) E117 of 2021) [2026] KECA 137 (KLR)", Case Analysis (2026). Civil Application (additional evidence) arising from Civil Suit No. 1766 of 2002 appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/137/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.