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ELCDismissedAppeal dated 11/8/2025 (Notice of Appeal dated 16/6/2025); Application dated 17/2/2026· [2026] KEELC 3533 (KLR)

Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)

High Court of Kenya at Nyandarua
11 June 2026
3,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling in a first appeal at Nyandarua against the judgment of 27/5/2025 by H. Adika, Senior Principal Magistrate, who cancelled the Appellant's title to L.R No. Nyandarua/Ol-Kalou Salient/503, ordered the land to revert to Beth Gakonyo Karari as at 9th October 1998, issued a permanent injunction against the Appellant, and awarded costs to the Respondent, while dismissing the Appellant's counter-claim. Before filing the Record of Appeal, the Appellant applied for leave to adduce additional evidence - namely the parcel file for the suit land from the County Land Registrar, Nyandarua - and for leave to file a Supplementary Record of Appeal. He argued the evidence was directly relevant, credible, and could not have been obtained with reasonable diligence at trial. The Respondent opposed, contending the application was an afterthought to fill gaps in a case the Appellant had fully litigated; the green card was produced by consent and the Land Registrar could have been called at trial. Mugo Kamau J reviewed Order 42 Rule 27(1) of the Civil Procedure Rules, the Ladd v Marshall three-part test, and the expanded principles in Mohamed Abdi Mahamud, plus Court of Appeal authorities including Safe Cargo, Dorothy Nelima Wafula, Gachuki v Njenga and Mzee Wanje v Saikwa. Holding that the evidence was all along available - the Land Registrar could have been summoned at trial or an abstract of title applied for - the court dismissed the application with costs, reiterating that admission of additional evidence on appeal is discretionary, exercised sparingly, and never to patch up weak points or make a fresh case.

Key legal issues

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01

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

Holding

The application was dismissed because the evidence sought was available at trial and could have been obtained with reasonable diligence.

Reasoning

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.

p. 8
02

Whether additional evidence on appeal may be used to fill gaps or make a fresh case

Holding

No; additional evidence is admitted sparingly and with abundant caution and never to patch up weak points in an unsuccessful litigant's case.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The application seeking leave to adduce additional evidence was dismissed
  2. 2.Costs of the application were awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 27(1)
  • Limitation of Actions Actnull
  • Environmental and Land Control Act (No. 19 of 2011)Section 19(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 164(1)
  • Appellate Jurisdiction ActSection 3(1)

Cases cited (10)

  • Patrick Thoithi Kanyuira v Kenya Airports
    Petition (application) No. 7 of 2017
  • Ladd v. Marshall
    [1954] 1 WLR 1489
  • Minister for Health & another v. Uasin Gishu Memorial Hospital Limited & another; Attorney General & another (interested parties)
    2019 eKLR
  • Raila Odinga & 5 Others v. Independent Electoral and Boundaries Commission & 3 Others
    [2013] eKLR
  • Pop-In (Kenya) LTD & 3 Others v. Habib Bank AG Zurich
    [1990] eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] KECA 677 (KLR)
  • Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson
    [2017] KECA 654 (KLR)
  • Safe Cargo Limited v Embakasi Properties Limited & 2 Others
    [2019] eKLR
  • Gachuki & another v Njenga & 2 others
    (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR)
  • Mzee Wanje & 93 Others V A.K Saikwa
    (1982-88) 1 KAR 462
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

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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, "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.