Kimundi v Mutua (Environment and Land Appeal E011 of 2021) [2025] KEELC 5453 (KLR)
The bottom line
#A Kenyan land appeal court refused to admit new evidence because the applicant could have obtained it before trial, confirming diligence matters most.
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 threshold for leave to adduce additional evidence on appeal to be granted
Key legal issues
#Whether the Applicant met the threshold for admission of additional evidence on appeal
The application failed the due diligence limb of the Mohamed Abdi Mohamed test
The court found the Applicant knew before trial that the Respondent held a certificate of lease for Sultan Hamud Town/341, and Gerald Muia had subdivided his plot in 2018 before the suit was filed in 2019. Nothing prevented the Applicant from obtaining the title for use at trial. The evidence would also not impact the outcome of the appeal.
Credibility of the Kaiti Limited title over Sultan Hamud Town/341
The Kaiti Limited title is doubtful because it post-dates the Respondent's title over the same parcel number
The court observed it was doubtful the Land Registrar would issue title under the same parcel number in 2016 to the Respondent and register another parcel with the same number to Kaiti Limited in 2018. The doubt attaches to Kaiti Limited's title, not the Respondent's, since the Respondent's certificate of lease preceded the subdivision.
Legal principles established
#- Additional evidence on appeal is admitted sparingly and only where the party shows it could not have been obtained with reasonable diligence at trial and that it would influence the outcome
Court orders
#- 1.Application dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (lower court)
- Not stated
- Jurisdiction invoked
- Section 78(1) and (2) of the Civil Procedure Act and Order 42 Rules 27 and 28 of the Civil Procedure Rules
Relief refused
#Prayer to take additional evidence (certificate of lease and green card for Sultan Hamud Town/341)
Evidence could have been obtained with reasonable diligence at trial and will not impact the appeal
Leave to file a supplementary record of appeal
Dependent on prayer 1 which was refused; application dismissed
Witness summons to Director, Kaiti Limited (Gerald Muia) and Land Registrar, Makueni County
Fell with the dismissal of the main prayer
Costs
Costs of the application to the Respondent (dismissed with costs 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.
I find no merit in the Applicant's application which is hereby dismissed with costs to the Respondent.
The Applicant has therefore failed the test in the case of Mohamed Abdi Mohamed (Supra) which requires that an Applicant has to show that the evidence could not have been obtained with reasonable diligence for use at the trial
allowing the additional evidence sought to be adduced will not impact on the decision in the appeal and will not in any way assist the court in determining the appeal
The Applicant submitted that grant of leave to adduce additional evidence on appeal is discretionary and the court has to be cautious as the order should be granted sparingly and in exceptional circumstances.
Issues in the judgment
#Order 42 Rule 27 and Order 42 Rule 28 are quoted with identical wording, which is an apparent drafting/typographical error in the judgment
The application is brought by an 'Appellant/Applicant' before this court, indicating the matter is an appeal, yet no appeal number or lower court case number is stated in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimundi v Mutua (Environment and Land Appeal E011 of 2021) [2025] KEELC 5453 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5453/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.