Matu v Mulwa (Environment and Land Appeal E30 of 2024) [2026] KEELC 2813 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed late bank statements as appeal evidence because excluding them could force a tenant to pay rent twice.
What this practically means
#Executive summary
#Key legal issues
#Threshold for admission of additional evidence on appeal
The threshold is as set out in the Mohamed Abdi Mohamed guidelines; new evidence is allowed only sparingly, on demonstration of relevance, credibility, due diligence and potential to influence the result
The court adopted the eleven-point guidelines from the Supreme Court in Mohamed Abdi Mohamed, reiterated in Kombe Harrison Garama, and restated that admission is discretionary, not a right, requiring relevance to core issues, weight sufficient to alter the outcome, and proof that the evidence could not with reasonable diligence be obtained at trial.
Whether the appellant's explanation for non-availability of the evidence at trial was credible
Yes - the appellant's explanation that the bank could not retrieve the archived statements was plausible, and the respondent's bare denial without substantiation was insufficient
The respondent denied that the evidence was unavailable at trial but gave no basis for the denial. The court held that bare or mere denial is not enough and required substantiation; absent that, the appellant's explanation that the bank statements were archived and could not be retrieved was accepted as plausible.
Balance of prejudice
The appellant would suffer greater prejudice if the evidence were excluded, as he risks paying rent twice over; the respondent can rebut the evidence at the appeal
The court weighed the risk that the appellant would unjustifiably pay twice for the same rent against the respondent's fear of re-opening the case, holding that the respondent would be allowed to interrogate the evidence, and that excluding obviously germane evidence would unfairly enrich the respondent.
Legal principles established
#- Admission of new evidence on appeal is not a matter of right; it is an exception allowed sparingly and with the court's permission where due diligence is shown and the evidence is relevant and capable of affecting the result
- A first appeal is handled as a re-trial, which justifies admission of new evidence in appropriate cases
Court orders
#- 1.Leave granted to the appellant to adduce additional evidence in the form of bank statements for the period between 11th September 2014 and 7th August 2018 (Prayer 1)
- 2.The additional evidence admitted as part of the record of appeal for consideration in determining the appeal (Prayer 2)
- 3.Costs of the application to be in the cause (Prayer 3)
- On appeal from
- Magistrate's Court (MCCC), Kitui
- MCCC E 171 of 2020
- Jurisdiction invoked
- Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules; Article 159(2) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matu v Mulwa (Environment and Land Appeal E30 of 2024) [2026] KEELC 2813 (KLR)", Case Analysis (2026). MCCC E 171 of 2020 (appeal); motion on notice dated 4/3/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2813/eng@2026-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.