Wakhule v Atipole (Environment and Land Appeal E045 of 2024) [2026] KEELC 1712 (KLR)
The bottom line
#A Kakamega court refused to allow new survey evidence on appeal because the appellant obtained it too late and without a good reason.
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 production of new evidence on appeal
Key legal issues
#Whether the applicant met the threshold for production of new evidence on appeal
The application failed; the evidence was not procured with due diligence before judgment and was an attempt to patch gaps in the appellant's case
The court applied the Mohamed Abdi Mahamud guidelines from the Supreme Court. The report sought to be admitted was prepared 9 months after the trial court's judgment, and no explanation or court order was sought to have the evidence availed before judgment. The evidence was therefore not obtained with reasonable diligence and was directed at curing deficiencies in the appellant's case at trial, which the law does not permit. The application was accordingly dismissed with costs.
Legal principles established
#- Admission of new evidence on appeal is discretionary and allowed only in exceptional circumstances where the evidence could not be obtained with reasonable diligence, is credible, necessary, and would importantly influence the outcome; it must not be used to fix a weak case
Court orders
#- 1.The application dated 18th July 2025 is dismissed with costs
- 2.Costs of the application to abide by the outcome of the appeal (sought but effectively superseded by dismissal with costs)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (subordinate court, not specified)
- Jurisdiction invoked
- Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules
Relief refused
#Admission of the Kakamega County Surveyors report dated 28th May 2025 and the resultant Land Registrar's report dated 25th June 2025 as additional evidence in the appeal
The report was procured 9 months after judgment without explanation of due diligence and is an attempt to fill gaps in the appellant's case
Costs
The application dated 18th July 2025 lacks merit and the same is hereby dismissed with costs.
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.
In the premises, I find and hold that the application dated 18th July 2025 lacks merit and the same is hereby dismissed with costs.
Adducing new evidence should not be used as a tool to fix a weak case.
There is no demonstration that due diligence was applied in securing the evidence before judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakhule v Atipole (Environment and Land Appeal E045 of 2024) [2026] KEELC 1712 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 18th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1712/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.