Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal E490 of 2026

Wafula v Wang'undu

Court of Appeal
28 August 2026
2,723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal allowed a litigant to add new documents mid-trial, ruling that evidence rules are applied flexibly, not as a rigid checklist.

What this practically means

#

Executive summary

#
The appellant, Centrine Wekesa Wafula, sought to introduce additional documents (a charge sheet, criminal proceedings and Mpesa statements) in a contract suit over a Kshs. 400,000/- loan in CMCC No. 486 of 2015. The subordinate court (Hon C.A.S. Mutai SPM) dismissed her application dated 19th March 2022, citing laches, prejudice and the need to end litigation, and the High Court (R.E. Ougo J) dismissed her first appeal on similar grounds. The Court of Appeal at Kakamega (Nyamweya, Ngetich and Radido JJ.A) allowed the second appeal. Holding that the Supreme Court's additional-evidence guidelines in Mohammed Abdi Mohamud are not a rigid check-list and apply differently at trial and appellate stages, the Court found that the respondent had testified but had not closed her case, so prejudice was minimal and curable by costs; the documents were not bulky; and the delay in the proceedings was not attributable to the appellant, who only became a participant in 2017 after an interlocutory judgment was set aside. The Court set aside the High Court's judgment, allowed the application to file additional documents out of time, awarded the respondent costs of the subordinate court application, ordered each party to bear their own costs in the High Court and this Court, and directed that the trial proceed before a magistrate other than Hon. C.A.S. Mutai (SPM).

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal, on second appeal, could interfere with the exercise of discretion by the subordinate court and High Court in rejecting the appellant's application to introduce additional documents
  2. 2.Whether the guidelines for additional evidence apply as a rigid check-box or flexibly according to the circumstances of each case
  3. 3.Whether prejudice, delay and the stage of proceedings justified refusal of the application

Key legal issues

#
01

Scope of second appellate jurisdiction

Holding

The Court is confined to matters of law on second appeal and may interfere where the courts below exercised discretion on wrong principles or failed to consider relevant matters.

Reasoning

Relying on Kenya Breweries Ltd v Godfrey Odoyo, the Court restated that a second appeal is confined to questions of law, including whether the courts below considered matters they should not have, omitted relevant matters, or reached a perverse decision. The Court found the courts below misapplied the additional-evidence principles, warranting interference with their discretionary rulings.

p. 3
02

Application of the additional-evidence guidelines

Holding

The Mohammed Abdi Mohamud guidelines are applied flexibly, not as a check-box, and some apply at trial stage and others at appellate stage.

Reasoning

The Court held that not all the Supreme Court's guidelines apply in every case; their relevance depends on whether additional evidence is sought at trial or on appeal. Here the application was made at the trial stage, before the respondent closed her case, so the appellate-stage considerations relied on by the lower courts were inapt.

p. 4
03

Prejudice and stage of proceedings

Holding

Because the respondent had testified but not closed her case, minimal prejudice arose and could be cured by costs and recall/cross-examination.

Reasoning

The Court found the respondent had testified but had not called further witnesses or closed her case. She could be recalled to speak to the new documents and cross-examine the appellant; the documents were not bulky. Prejudice was therefore minimal and addressable by costs, undermining the lower courts' refusal.

p. 5
04

Delay attributable to the applicant

Holding

Although the application came seven years after suit, the appellant was not responsible for the delay in commencement of the hearing, so delay could not be visited upon her.

Reasoning

The suit was filed in 2015 but the appellant only became a participant in 2017 when the interlocutory judgment was set aside by consent. The hearing commenced in 2018 and adjournments were attributable to the respondent's witness. The Court held it unreasonable to blame the appellant for delay she did not cause.

p. 5

Legal principles established

#
  • On a second appeal the Court of Appeal confines itself to matters of law, unless the courts below considered or failed to consider matters they should not have or the decision is perverse.
  • The Supreme Court's guidelines on additional evidence are not a rigid check-list; each case is determined on its own circumstances and stage of proceedings.
  • Where a party who has testified has not closed her case, refusal to admit additional evidence causes no or minimal prejudice addressable by costs.
  • Delay in proceedings not attributable to the applicant should not be visited upon her when assessing an application to introduce additional evidence.

Court orders

#
  1. 1.The appellant's application dated 19th March 2022 to file additional documents out of time is allowed
  2. 2.The respondent shall have the costs of the proceedings in the subordinate Court related to the hearing of the application dated 19th March 2022
  3. 3.Each party shall bear their own costs of the proceedings in the High Court and in this Court
  4. 4.The hearing in CMCC No. 486 of 2015 shall proceed before a different magistrate other than Hon. C.A.S. Mutai (SPM)

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma
Bungoma High Court Civil Appeal No. E123 of 2022
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act/Rules (specific provision not stated in the judgment)

Relief refused

#

Costs of the High Court and of this Court

Each party was ordered to bear their own costs at those levels

p. 5

Costs

Respondent to have costs of the subordinate court proceedings on the application dated 19th March 2022; each party to bear their own costs in the High Court and in this Court.

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 Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Second appellate jurisdiction
It is not our understanding that the guidelines given by the Supreme Court ought not to be ticked individually against a check-box. Each case ought to be determined based on the obtaining circumstances, as not all the guides given would all apply in all cases.
p. 4Flexible application of additional-evidence guidelines
In the circumstances, there would have been no or minimal prejudice caused to the respondent, which in any event could have still be addressed by way of costs.
p. 5Prejudice where a party has not closed its case
the record does not suggest that the appellant was responsible for the delay in the commencement of the hearing, and it was therefore not reasonable for the cause of the delay to be visited upon her.
p. 5Delay not attributable to the applicant
The appellant's application dated 19th March 2022 to file additional documents out of time is allowed.
p. 5Final orders - disposition
The hearing in CMCC No. 486 of 2015 in the subordinate Court shall proceed before a different magistrate other than Hon. C.A.S. Mutai (SPM).
p. 5Final orders - reassignment of magistrate

Issues in the judgment

#
minor

Conflicting dates for the respondent's testimony

minor

Later passage gives a different date for the same testimony

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wafula v Wang'undu", Case Analysis (2026). Civil Appeal E490 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2017/eng@2026-08-28

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