Juma & another v Masakhalia & another
The bottom line
#Kenya's Court of Appeal refused to accept new surveyor's evidence because the appellants could have presented it at trial but chose not to.
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 applicants should be granted leave to adduce additional evidence on appeal, namely a report dated 17th October 2025 prepared by the County Surveyor, Busia County
Key legal issues
#Whether the County Surveyor's report met the conditions for admission of additional evidence on appeal under rule 31 of the Court of Appeal Rules, 2022
The report did not meet the conditions; the applicants failed to show due diligence, risked introducing a fresh case on appeal, and the respondents would be prejudiced by loss of cross-examination
The court applied the Wanje v Saikwa principles (drawn from Ladd v Marshall) and the Mohamed Abdi Mahamud guidelines. The occupation of the suit property was in issue at trial, the applicants were given an opportunity to produce a surveyor's report but allowed the site-visit order to be vacated through their own adjournments, and they produced no evidence that the report was commissioned by the respondents. Admission would fill gaps and deny the respondents cross-examination of the report's maker.
Legal principles established
#- Leave to adduce additional evidence on appeal is discretionary and the applicant must first demonstrate that the evidence could not, with reasonable diligence, have been obtained for use at the trial before the other Ladd v Marshall/Mohamed Abdi conditions are addressed
- An unsuccessful party at trial may not adduce additional evidence on appeal to fill gaps or patch up weak points in its case
Court orders
#- 1.The prayers for stay of execution and proceedings and for inhibition were marked as withdrawn after counsel abandoned them
- 2.The prayer for leave to adduce additional evidence (the County Surveyor's report) was dismissed
- 3.Costs of the application awarded to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Busia
- Busia ELC Case No. 87 of 2015
- Jurisdiction invoked
- Rule 31 of the Court of Appeal Rules, 2022 (appellate discretion to take additional evidence)
Relief refused
#Leave to adduce additional evidence by way of the County Surveyor's report dated 17th October 2025
The applicants had an opportunity to present a surveyor's report at trial but opted not to; the evidence would fill gaps in their case and prejudice the respondents who could not cross-examine its maker
Costs
Dismissed with costs to the 1st and 2nd respondents
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.
Leave to adduce additional evidence is therefore at the discretion of the Court, and the principles applicable in the exercise of the Court’s discretion under rule 31 were summarized by Chesoni, Ag. JA.
It is only upon a nding being made that the evidence could not have been obtained after exercise of due diligence that we will then proceed to address the two remaining questions as to whether the evidence will probably have an important inuence on the result of the appeal, and whether it is credible evidence.
the applicants had opportunity to present a surveyor's report before the trial Court, but opted not to do so
the prayer in the Notice of Motion dated 21st October 2025 seeking leave to adduce additional evidence by way of an adavit, namely a report dated 17th October 2025 prepared by the County Surveyor of Busia County is not merited, and is accordingly dismissed with costs to the 1st and 2nd respondents.
Issues in the judgment
#Inconsistent date of the County Surveyor's report: 17th October 2025 in the notice of motion versus 17th October 2023 in the applicants' submissions and the respondents' reply
The trial court's ruling vacating the site visit is narrated as 12th November 2011 but quoted as 12/11/2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma & another v Masakhalia & another", Case Analysis (2026). Civil Appeal (Application) E078 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.