Mbugi v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others (Civil Appeal (Application) E020 of 2022) [2026] KECA 1402 (KLR)
The bottom line
#The Court of Appeal in Nyeri dismissed a bid to add new evidence on appeal, confirming Kenyan courts admit such evidence only sparingly.
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 evidence by way of a supplementary record of appeal
- 2.Whether the applicant satisfied the threshold for admission of additional evidence on appeal
- 3.Whether the erroneous citation of the repealed rule 29(1)(b) instead of rule 31(1)(b) of the Court of Appeal Rules, 2022 was fatal
Key legal issues
#Whether the threshold for admission of additional evidence on appeal was met
The application failed because the documents were in the applicant's possession at trial and could have been produced with reasonable diligence; the applicant did not show the evidence would probably have had an important influence on the result.
Applying the Supreme Court's guidelines in Mahamud vs. Mohamad, the applicant had to show relevance, influence on the verdict, and inability to obtain the evidence with reasonable diligence. The record showed the applicant was given leave and time to file a response to the judicial review application but filed only submissions. The evidence was thus available and within his knowledge, and its late introduction would only fill gaps and patch omissions, which the rules do not permit.
Whether the erroneous citation of the repealed rule 29(1)(b) instead of rule 31(1)(b) of the 2022 Rules was fatal
No; the procedural technicality was not fatal because the substance of the application was preserved under the corresponding provision of the 2022 Rules.
The application was premised on rule 29(1)(b) of the repealed 2010 Rules, but counsel sought correction to rule 31 of the Court of Appeal Rules, 2022. The court treated the mischaracterisation as a non-fatal procedural technicality and considered the application under rule 31(1)(b), which empowers the court, in its discretion and for sufficient reason, to take additional evidence or direct it be taken by the trial court.
Blame on former advocate as justification for additional evidence
Blaming one's advocate for failure to file evidence does not satisfy the diligence requirement; the litigant bears responsibility for following up the case.
The applicant attributed the omission to his erstwhile counsel who failed to file a response containing the documents. The court reiterated that litigation belongs to the party, not the advocate, and that a diligent litigant would have noticed that no supporting affidavit, and therefore no evidence, was filed. The applicant was accorded time and an opportunity by the superior court but filed only submissions.
Legal principles established
#- Additional evidence may be admitted on appeal only in exceptional circumstances, on a case-by-case basis, sparingly and with abundant caution, per the guidelines laid down by the Supreme Court, which bind this Court and lower courts.
- Litigation belongs to the party and not the advocate; a litigant must follow up their case with diligence and cannot blame an advocate's omissions to justify adducing evidence for the first time on appeal.
- The rule on additional evidence is not intended to enable an unsuccessful litigant to patch up weak points or fill omissions; the power must be exercised sparingly and with great caution.
Court orders
#- 1.The application dated 19th May, 2023 is dismissed
- 2.The costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (superior court, judicial review)
- Chuka Judicial Review Application No. E004 of 2021
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules, 2022 (application erroneously cited as rule 29(1)(b) of the repealed Court of Appeal Rules, 2010)
Relief refused
#Leave to file additional evidence (form lodging appeal before the Minister for Lands and Housing and payment receipt) as a supplementary record of appeal
The applicant had the documents all along, was given an opportunity to adduce them at trial, and failed; the evidence was being adduced to fill gaps and patch up weak points in his case
Costs
The costs of this application shall be in the appeal.
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 dated 19th May, 2023 is without merit and is hereby dismissed.
The costs of this application shall be in the appeal.
This rule is not intended to enable a party who has discovered fresh evidence to import it nor is intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal.
We must stress here that 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.
Issues in the judgment
#The judgment is dated and delivered on 3rd July, 2026, a date that appears anomalous relative to the 2025 hearing dates; recorded as printed.
The 5th respondent is recorded as relying on Wanje vs A K Saikwa both in the replying affidavit submissions and the court later applies it as its own authority; the citationTreatment for Joginder is by party only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugi v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others (Civil Appeal (Application) E020 of 2022) [2026] KECA 1402 (KLR)", Case Analysis (2026). Civil Appeal No. E020 of 2022 (Application dated 19th May, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1402/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.