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ELCDismissedNot stated in the extract provided

Kimundi v Mutua (Environment and Land Appeal E011 of 2021) [2025] KEELC 5453 (KLR)

Environment and Land Court (sitting on appeal from the magistrates' court)
23 July 2025
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Hon. E. O. Obaga, Judge, delivered on 23rd July 2025 via Microsoft Teams, determines a Notice of Motion dated 24th January 2025 in which the Appellant/Applicant sought leave to adduce additional evidence on appeal, namely the certificate of lease and green card for plot Sultan Hamud Town/341, to be produced by Gerald Muia, a director of Kaiti Limited, and the Land Registrar, Makueni County, together with leave to file a supplementary record of appeal. The Applicant contended that the certificate of lease for plot 341 was processed in 2021 and was in Gerald Muia's custody, and that its absence caused the trial magistrate to disregard her evidence and find that the Respondent's certificate of lease emanated from unsurveyed plot No. 71 Sultan Hamud. The Respondent opposed the application as an abuse of process, an afterthought, frivolous and vexatious. The sole issue framed was whether the Applicant met the threshold for admission of additional evidence on appeal under Section 78(1) and (2) of the Civil Procedure Act and Order 42 Rules 27 and 28 of the Civil Procedure Rules, guided by the Supreme Court's principles in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed (2018) eKLR. The court held that the Applicant knew before trial of the Respondent's certificate of lease and could have obtained the evidence with reasonable diligence, and that the additional evidence would not impact the appeal. The court also expressed doubt over the Kaiti Limited title, which post-dated the Respondent's title. The application was dismissed with costs to the Respondent.

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 met the threshold for leave to adduce additional evidence on appeal to be granted

Key legal issues

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01

Whether the Applicant met the threshold for admission of additional evidence on appeal

Holding

The application failed the due diligence limb of the Mohamed Abdi Mohamed test

Reasoning

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.

p. 4
02

Credibility of the Kaiti Limited title over Sultan Hamud Town/341

Holding

The Kaiti Limited title is doubtful because it post-dates the Respondent's title over the same parcel number

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Application dismissed with costs to the Respondent

The bench

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

majority

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

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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

p. 4

Leave to file a supplementary record of appeal

Dependent on prayer 1 which was refused; application dismissed

p. 4

Witness summons to Director, Kaiti Limited (Gerald Muia) and Land Registrar, Makueni County

Fell with the dismissal of the main prayer

p. 4

Costs

Costs of the application to the Respondent (dismissed with costs to the Respondent)

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.

I find no merit in the Applicant's application which is hereby dismissed with costs to the Respondent.
p. 4Final orders - dismissal of the notice of motion
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
p. 4Failure of the due diligence threshold for additional evidence
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
p. 4Relevance and materiality of the proposed additional evidence
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.
p. 3Discretionary and exceptional nature of admission of additional evidence

Issues in the judgment

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minor

Order 42 Rule 27 and Order 42 Rule 28 are quoted with identical wording, which is an apparent drafting/typographical error in the judgment

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.