Jattani v Jattani (Environment and Land Appeal E009 of 2023) [2025] KEELC 3283 (KLR)
The bottom line
#A Kenyan court refused to let an appellant add new evidence on appeal, ruling he had his chance at trial and the late evidence looked forged.
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 has met the statutory threshold to warrant the grant of leave to adduce additional evidence
- 2.Whether the grant of such leave will prejudice the Respondent or otherwise
Key legal issues
#Threshold for leave to adduce additional evidence on appeal
Not met: evidence was within the Applicant's knowledge at trial, gaps could have been plugged by objection, summons or forensic examination, and the application was mala fide
The letter of allotment was filed by the Respondent at trial and known to the Applicant, who neither objected, cross-examined, nor summoned witnesses from the National Land Commission or the directorate of land administration. The sought letter merely plugs gaps exposed by the judgment, is disowned by its purported author, and is annexed in two conflicting versions, evidencing bad faith and possible forgery.
Prejudice and expeditious disposal
Granting leave would prejudice the elderly Respondent, delay the appeal and unravel the trial proceedings
Guided by Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution, and the dicta in Said Sweilem Gheithan Saanum, the court held that allowing the application would undo the trial proceedings, open a Pandora's box, and subject the Respondent to anxiety, prejudice, injustice and delay.
Legal principles established
#- Additional evidence on appeal requires demonstration that it could not have been obtained with reasonable diligence for use at the trial
- A litigant may not use the appellate process as an investigating forum to procure documents to defeat a judgment
- A party seeking equitable relief must approach the court in good faith and with clean hands
Court orders
#- 1.The amended Notice of Motion Application dated 11th November 2024 be and is hereby dismissed
- 2.Costs of the Application awarded to the Respondent
- 3.The letter dated 23rd May 2023 be referred to the Directorate of Criminal Investigations to undertake due investigations in respect thereof, pursuant to Sections 113 and 114 of the Penal Code
- 4.Subject to the investigations and the powers bestowed upon the Directorate of Criminal Investigations under Articles 244 and 245 of the Constitution, appropriate action be taken if and where deemed apposite
- 5.Liberty granted to the Appellant to file a supplementary record of appeal including the typed and certified proceedings of the trial court
- 6.The supplementary record of appeal to be filed and served within 14 days
- 7.Mention on 7th April 2025 for directions on the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (magistrates' court, Moyale)
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya (powers of appellate court, including taking additional evidence)
Relief refused
#Leave to produce additional evidence (letter dated 23rd May 2023)
Applicant failed the due-diligence threshold; the evidence is intended to fill gaps; application not made in good faith, with conflicting/forged annexures
Deeming the supplementary Record of Appeal (containing the impugned letter) as duly filed
Consequential upon refusal of leave to adduce the additional evidence
Costs
Costs of the Application be and are hereby awarded to the 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 amended notice of Motion Application dated the 11th November 2024 be and is hereby dismissed.
Costs of the Application be and are hereby awarded to the Respondent.
the letter dated 23rd of May 2023 be and is hereby referred to the directorate of criminal investigations to undertake due investigations in respect thereof.
liberty be and is hereby granted to the Appellant to file a supplementary record of appeal and to include the typed and certified proceedings of the trial court.
the current application, if allowed, would be tantamount to granting the Applicant undue latitude to go on a fishing excursion/ expedition.
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence.
Issues in the judgment
#The court and station are not expressly identified anywhere in the judgment
The name of the Respondent is never given; the Respondent is referred to only descriptively
Contradictory citation of the Constitution: earlier the court cites Article 159(2)(b), later the same principle is cited as 'Article 1259[2][b]'
Respondent's counsel cited the same authorities quoted by the court (Said Sweilem, Belinda Murai, Ketterman) within its submissions block, making citedBy attribution partly ambiguous
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jattani v Jattani (Environment and Land Appeal E009 of 2023) [2025] KEELC 3283 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3283/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.