Otieno v Developing Africa Limited & another (Civil Appeal (Application) E035 of 2024) [2026] KECA 782 (KLR)
The bottom line
#Kenya's Court of Appeal refused to accept new evidence on appeal because the appellant hadn't tried hard enough to get it during the 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 adduce additional evidence (an affidavit of Jane Lungatho Ndege and a green card for the suit property) on appeal
- 2.Whether the applicant exercised reasonable diligence to obtain the evidence before and during the trial
Key legal issues
#Whether the applicant exercised reasonable diligence in procuring the witness's affidavit before and during the trial
She did not; she knew the witness's whereabouts and could have procured her testimony at trial, so this limb of the test failed.
The Court found from the supporting affidavit that the applicant knew the whereabouts of Jane Lungatho Ndege and could have secured her evidence at trial. The claim that the evidence could only be traced after judgment did not amount to lack of diligence. On the settled principles, an appellant who could with reasonable diligence have obtained evidence at trial cannot be allowed to fill evidentiary gaps on appeal, and the proposed evidence was in any event an apparent afterthought aimed at shoring up a weak trial record.
Whether the green card could not be obtained despite due diligence
No; a green card is a public document available on application, and the applicant produced no proof that she applied for it during the hearing and was told it was missing.
The Court accepted the 1st respondent's submission that a green card is a public document obtainable by anyone from the Land Registry. The applicant's assertion that the green card went missing was unsupported: she did not place before the Court any evidence that she made an application at the Land Registry Kisumu during the hearing and was informed the card was missing. Her claim remained an unproven allegation, and the due-diligence limb of the test was therefore not satisfied for this piece of evidence either.
Legal principles established
#- Before permitting additional evidence under Rule 31, the applicant must show the evidence could not be obtained by reasonable diligence before and during the hearing, that it would probably have had an important influence on the result, and that it is credible, though not necessarily incontrovertible.
- The power to admit additional evidence on appeal must be exercised very sparingly and with great caution; it will not be admitted where reasonable diligence would have made it available at trial, save in cases of fraud or surprise.
- A green card, being a public document obtainable from the lands office, can be procured on application; a bare claim that it was missing, without proof of an application for it during the hearing, does not establish due diligence.
Court orders
#- 1.The application for leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules
Relief refused
#Leave to adduce as additional evidence the affidavit of Jane Lungatho Ndege and the green card for Land Parcel No. Kisumu/Nyalenda 'B'/630
The applicant failed to demonstrate that the evidence could not have been obtained with reasonable diligence before and during the trial; no proof was placed before the Court that she applied for the green card during the hearing or made due efforts to secure the witness
Costs
The application is dismissed with costs to the 1st 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.
The application lacks merit and is hereby dismissed with costs to the 1st respondent.
before the Court can permit additional evidence to be adduced under Rule 29 (now Rule 31), it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing
We hold that the applicant did not satisfy us that she exercised the required due diligence that entitles her to the order of adduction of additional evidence that she craves for in her application.
we agree with the 1st respondent that a green card, being a public document can be obtained from the lands ofice upon application.
Issues in the judgment
#The judgment is dated 24th April 2026, which appears to be a future date relative to the supporting affidavit dated 23rd May 2025 described as already on record; possible typographical error in the delivery date.
The judgment does not state the appeal number, the parties other than the 1st respondent, the court below, or the decision appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Developing Africa Limited & another (Civil Appeal (Application) E035 of 2024) [2026] KECA 782 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/782/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.