County Government of Homa Bay v Jaleny (Environment and Land Appeal E041 of 2025) [2026] KEELC 4963 (KLR)
The bottom line
#A Kenyan court refused to let a party call new evidence on appeal to fix gaps left at trial — prepare your case properly the first time.
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 Respondent/Cross-Appellant has satisfied the conditions for admission of additional evidence on appeal under Order 42 Rule 27 of the Civil Procedure Rules.
Key legal issues
#Whether the additional evidence sought (oral testimony of the valuer) meets the Order 42 Rule 27 threshold
The threshold was not met; the evidence was not newly discovered and was available with reasonable diligence at trial.
Order 42 Rule 27 permits additional evidence only where the appellate court requires it to pronounce judgment or for other substantial cause. The valuation report existed before trial, the respondent was represented and knew of the date inconsistency, and had even addressed it in written submissions. The choice not to call the valuer was the respondent's own litigation choice, and the trial court's passing observation could not found a reopening of the case.
Legal principles established
#- Admission of additional evidence on appeal is an exception, not a vehicle to improve an inadequately presented case or fill gaps.
- A litigant who elects not to call a witness at trial cannot reopen the evidentiary process on appeal merely because the trial court found the explanation wanting.
- A trial court's observation that a witness ought to have been summoned is not itself a basis for reopening a party's case on appeal.
Court orders
#- 1.The Notice of Motion dated 16th December 2025 is dismissed.
- 2.The costs of the application shall abide the outcome of the appeal and the cross-appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court
- ELC Case No. E050 of 2023
- Jurisdiction invoked
- Order 42 Rule 27(1) and Order 51 Rule 1 of the Civil Procedure Rules (appellate jurisdiction over the Chief Magistrate's Court)
Relief refused
#Leave to produce additional evidence as to the value of the damaged property by calling the valuer to adduce oral evidence on appeal
The evidence was always available and the respondent could have called the valuer at trial; admitting it would allow the respondent to fill gaps in his case after judgment, contrary to Order 42 Rule 27.
Costs
The costs of the application shall abide the outcome of the appeal and the cross-appeal.
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.
Consequently, the Notice of Motion dated 16th December 2025 is hereby dismissed.
The costs of the application shall abide the outcome of the appeal and the cross-appeal.
An appellate court is not intended to provide litigants with an opportunity to remedy omissions arising from their own litigation choices.
This Court is satisfied that the intended evidence is not newly discovered evidence.
Issues in the judgment
#The parties are not named anywhere in the ruling; they are referred to only as 'Respondent/Cross-Appellant' and 'Appellant'.
The court declined to determine the competency/timeliness of the cross-appeal, leaving Section 79G arguments unresolved.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Homa Bay v Jaleny (Environment and Land Appeal E041 of 2025) [2026] KEELC 4963 (KLR)", Case Analysis (2026). ELC Appeal No. E041 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4963/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.