Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)
The bottom line
#The High Court in Nyandarua refused to let an appellant add new land evidence on appeal because it was available at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant met the criteria for admission of additional evidence on appeal under Order 42 Rule 27(1) of the Civil Procedure Rules and the Ladd v Marshall three-part test
The application was dismissed because the evidence sought was available at trial and could have been obtained with reasonable diligence.
The court applied the three-part test in Ladd v Marshall as expanded by the Supreme Court in Mohamed Abdi Mahamud: direct relevance, capacity to influence the result, and non-availability with reasonable diligence. The Appellant actively participated in the trial; the green card was produced by consent and the Land Registrar could have been summoned then. The evidence was thus all along available and the application failed the reasonable-diligence limb.
Whether additional evidence on appeal may be used to fill gaps or make a fresh case
No; additional evidence is admitted sparingly and with abundant caution and never to patch up weak points in an unsuccessful litigant's case.
Relying on Mzee Wanje & 93 Others v A.K Saikwa and Dorothy Nelima Wafula, the court reiterated that the power to admit additional evidence is discretionary, exercised sparingly and with great caution, and must not be used to enable a party to make out a fresh case or remove lacunae and fill gaps in evidence, failing which there would be no end to litigation.
Legal principles established
#- A party who had the opportunity to produce evidence at trial cannot introduce it on appeal where it was all along available and could have been obtained with reasonable diligence.
- Additional evidence on appeal is a discretionary remedy to be exercised sparingly, not a right, and cannot be used to patch up weak points or fill gaps in a case.
Court orders
#- 1.The application seeking leave to adduce additional evidence was dismissed
- 2.Costs of the application were awarded to the Respondent
- On appeal from
- Principal Magistrates' Court, Ol-Kalou (Nyandarua)
- null
- Jurisdiction invoked
- Article 164(1) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act (first appeal against judgment of the Senior Principal Magistrate); Order 42 Rule 27(1) Civil Procedure Rules for the application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)", Case Analysis (2026). Appeal dated 11/8/2025 (Notice of Appeal dated 16/6/2025); Application dated 17/2/2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3533/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.