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ELCDismissedNot stated in the judgment

Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2025] KEELC 5334 (KLR)

Environment and Land Court
14 July 2025
MOMOGENI
1,603 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let an appellant introduce new evidence on appeal because he should have presented it during the original trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Mogeni J) on a Notice of Motion dated 5 September 2024 in which the appellant sought leave to adduce additional evidence on appeal, together with directions on how such evidence would be tendered and costs in the cause. The respondent opposed through a 51-paragraph replying affidavit, contending that all the documents the applicant sought to introduce were in his possession before the lower court hearing, that he attended court sessions and was represented despite claiming to be based in Rwanda, that the 1989 letter was unsigned, and that the surveyor's report lacked instructions and proof of the surveyor's licence. The court canvassed the application by written submissions and framed a single issue: whether the applicant satisfied the criteria for adducing additional evidence on appeal. Relying on Section 78 of the Civil Procedure Act, Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, and the Supreme Court's criteria in Mohammed Abdi Mohamud, the court held that additional evidence on appeal is not automatic. Neither had the lower court refused to admit material evidence nor did the appellate court require the documents to pronounce judgment. The grounds mirrored the Grounds of Appeal, and a retrial on appeal would allow the evidence to be adduced anyway. The application was dismissed with no order for costs, and mention fixed for 28 July 2025.

Questions the Court framed

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

  1. 1.whether the Applicant has satisfied the criteria for adducing additional evidence on Appeal

Key legal issues

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01

Whether the criteria for adducing additional evidence on appeal were satisfied

Holding

The application failed because the Applicant did not show the lower court refused to admit material evidence, that the appellate court required the evidence to pronounce judgment, or that the evidence emerged after judgment

Reasoning

The court applied Section 78 of the Civil Procedure Act and Order 42 Rules 27-29 and the Mohammed Abdi Mohamud criteria. The Applicant never claimed the lower court declined to admit material evidence, nor did the court itself require any document or witness to pronounce judgment. The evidence sought was in the Applicant's hands before the lower court hearing, and the application's grounds mirrored the Grounds of Appeal, making it unsustainable.

p. 4

Legal principles established

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  • Adduction of additional evidence on appeal is not automatic and is governed by Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules

Court orders

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  1. 1.The application dated 5/09/2024 is dismissed
  2. 2.No order for costs
  3. 3.Mention for directions on the disposal of the Appeal on 28/07/2025

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010

Relief refused

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Leave to adduce/present additional evidence in the appeal

Applicant did not show evidence was unavailable at trial or that its admission was needed to pronounce judgment; grounds mirror the Grounds of Appeal

p. 4

Directions on how the additional evidence shall be tendered/presented

Falls with the main prayer once leave is refused

p. 4

Costs

No order for costs (dismissed with no order for costs)

Quotable passages

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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 application is unsustainable and I dismiss it with no order for costs.
p. 4Final orders – dismissal
Mention for directions on the disposal of the Appeal for hearing shall be on 28/07/2025.
p. 4Final orders – mention date
A reading of Rule 27 above indicates that the adduction of additional evidence on appeal is not automatic.
p. 3Principle on additional evidence
the additional evidence must be directly relevant to the matter before the Court and be in the interest of justice
p. 3Mohammed Abdi criteria (as adopted)

Issues in the judgment

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material

The judgment does not state the case title or case number of the appeal/application

minor

Court from which the appeal is preferred is not identified in the extract

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2025] KEELC 5334 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5334/eng@2025-07-14

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