Juma & another v Masakhalia & another

was present for the respondents. Upon concerns raised by the Court on the propriety of the prayers sought in the said application, Mr. Onsongo indicated that he was abandoning the prayers for stay of execution and proceedings, as well as the prayer for an inhibition, and that he would only pursue the prayer to adduce additional evidence. The abandoned prayers were accordingly marked as withdrawn. Both counsel thereafter proceeded to highlight their respective submissions dated 17th November 2025, and 21st November 2025 on the outstanding prayer on adducing of additional evidence. 3. This ruling is accordingly on the applicants’ prayer to adduce additional evidence , namely a report dated 17th October 2025 prepared by the County Surveyor, Busia County. The application is supported by an adavit sworn by the 1st applicant on 21st October 2025 and a supplementary adavit sworn on 17th November 2025, wherein he deponed that the Certicate of Conrmation of Grant issued to the respondents in Busia High Court Succession Cause No. 90 of 2013 was consequently conrmed after the ELC delivered the impugned judgment dismissing their suit in Busia ELC Case No 87 of 2015. The 1st applicant further deponed that in the course of executing the Certicate of Conrmation of Grant, the County Surveyor visited the suit property and prepared a report which conrmed their evidence in the ELC that they occupied a larger portion of the suit property than the respondents. 4. The applicants explained that they were subsequently served with a letter dated 20th August 2025 notifying them that the County Surveyor would revisit the suit property to undertake its subdivision in accordance with the Certicate of Conrmation of Grant pursuant to an order by the succession Court dated 22nd July 2025. The applicants contend that unless the orders sought are granted, the subdivision of the suit property in accordance with the Certicate of Conrmation of Grant will be undertaken before the appeal is heard and determined, thereby exposing them to eviction from the portion of the property they occupy and rendering the appeal nugatory. They rely on the County Surveyor's report dated 17th October 2023, which they contend is consistent with the evidence on record, and will assist the Court in the just determination of the appeal. They submit that, as the report was commissioned by the respondents, its admission would occasion no prejudice to them and that it may properly be introduced by adavit since it is neither voluminous nor complex. 5. The applicants reiterated that the respondents had admitted during the trial that the applicants had occupied a larger portion of the suit property for a considerable period, although they did not know the exact acreage. They therefore contended that the respondents' objection to the admission of the County Surveyor's report was without merit, as the report satised the conditions for the admission of additional evidence. The applicants’ advocates cited the decisions in Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nielson (2017) KECA 654 KLR and Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 Others (2018) eKLR in their written submissions, in which they to urge that admitting additional evidence is an exercise of the Court’s discretion, and that the document sought to be adduced met the principles for admission of new evidence, as it was made by an independent person at a later date but conrms the evidence of the applicants on the usage and occupation of the suit land, and was not available during the initial trial. 6. The respondents opposed the application through a replying adavit sworn by the 1st respondent on 31st October 2025. They detailed the context in which the current appeal arises. The respondents deponed that Land Parcel No. Bukhayo/Bugengi/21 was jointly owned by Nicholas Masakhalia and Alphonse Masakhala, who were the fathers of the applicants and respondents respectively, each holding a one-half share. They further deponed that the applicants and respondents instituted separate succession proceedings in respect of the estates of their respective deceased fathers, namely Busia High Court Succession Cause No. 90 of 2013 which was instituted by the respondents, and Busia High Court Succession Cause No. 104 of 2007, which was instituted by the applicants. On 7th December https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 2

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2015 the proceedings in Busia High Court Succession Cause No. 90 of 2013 were stayed by consent pending the determination of Busia ELC No. 87 of 2015 (O.S.) in which the applicants were claiming over two acres comprised in the respondents' one-half share of the suit property by way of adverse possession. 7. Following the dismissal of the said claim by the ELC, the respondents sought conrmation of the grant Busia High Court Succession Cause No. 90 of 2013 and the High Court issued a Certicate of Conrmation of Grant in in respect of the estate of Ouma Masakhalia alias Alphonse Ouma on 12th May 2022. They asserted that the applicants neither applied for review or revocation of the orders issued on 12th May 2022 nor lodged an appeal against them, and that by a Notice of Motion dated 28th May 2025, they applied for orders directing the Busia County Surveyor to visit the suit property and implement the Certicate of Conrmation of Grant dated 12th May 2022, which application was allowed on 10th July 2025. 8. The respondents denied any knowledge of the County Surveyor's report dated 17th October 2023. They deponed that no court had directed the Busia County Surveyor to visit the suit property and prepare a report on its ownership or occupation, and that no such court order had been annexed to the applicants' supporting adavit. The respondents further deponed that the issue of ownership of the suit property had been conclusively determined in Busia ELC No. 87 of 2015 (O.S.), and contended that the County Surveyor's report dated 17th October 2023 could not properly be admitted as additional evidence on appeal because it had not been produced during the trial, thereby denying them the opportunity to cross- examine its author. They further deponed that they had never been served with or made aware of the said report in Busia High Court Succession Cause No. 104 of 2007. According to the respondents, the applicants were seeking to introduce new evidence in the form of the County Surveyor's report dated 17th October 2023, which they contended was procedurally improper. 9. The respondents’ advocates reiterated in their written submissions that the respondents did not contract the County surveyor nor participate in the production of report and contended that the applicants had failed to demonstrate that the evidence is necessary and rather than an attempt to ll gaps or patch weak points in their original case, and therefore did not meet the standards set in Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad and 3 Others (supra). 10. We have thoughtfully considered the arguments put forth by both counsel. The applicable law on adducing additional evidence is rule 31 of the Court of Appeal Rules of 2022, which provides as follows: 1. On any appeal from a decision of a superior court acting in the exercise of it’s original jurisdiction, the Court shall have power— a. to re-appraise the evidence and to draw inferences of fact; and b. in its discretion, for sucient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner. 2. When additional evidence is taken by the Court, it may be oral or by adavit and the Court may allow the cross-examination of any deponent. 3. When additional evidence is taken by the trial court, it shall certify such evidence to the Court, with a statement of its opinion on the credibility of the witness or witnesses giving the additional evidence; when evidence is taken by a commissioner, he shall certify the evidence to the Court, without any such statements of opinion. 4. The parties to the appeal shall be entitled to be present when such additional evidence is taken. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 3

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11. Leave to adduce additional evidence is therefore at the discretion of the Court, and the principles applicable in the exercise of the Court’s discretion under rule 31 were summarized by Chesoni, Ag. JA. (as he then was) in Wanje v A. K. Saikwa [1984] KECA 58 (KLR) as follows: “ …..the principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of Ladd v Marshall [1954] 1 WLR 1489 at page 1491 and those principles are: 12. a. it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; b. the evidence must be such that, if given, it would probably have an important inuence on the result of the case, though it need not be decisive; c. the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” As regards taking of additional evidence, we note that this application is being made by the applicants to counter adverse ndings made against them by the trial Judge in Busia ELC No. 87 of 2015 (O.S.). The Supreme Court of Kenya has, in this regard, set out guidelines for the admission of additional evidence before appellate courts in Hon. Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamed and 3 others [supra] as follows: “ (79) …. (a) the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; b. it must be such that, if given, it would inuence or impact upon the result of the verdict, although it need not be decisive; c. it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; d. where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; e. the evidence must be credible in the sense that it is capable of belief; f. the additional evidence must not be so voluminous making it dicult or impossible for the other party to respond eectively; g. whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; h. where the additional evidence discloses a strong prima facie case of willful deception of the Court; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 4

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i. the Court must be satised that the additional evidence is not utilized for the purpose of removing lacunae and lling gaps in evidence. The Court must nd the further evidence needful. j. a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, ll up omissions or patch up the weak points in his/her case. k. the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the signicance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 13. The Supreme Court in addition stressed that additional evidence at appellate level should be allowed on a case-by-case basis and even then “sparingly with abundant caution.” We are concerned in this respect that the applicants had opportunity to present a surveyor's report before the trial Court, but opted not to do so. We need to emphasise that in applications of this nature, the questions that we need answered are rstly, whether the evidence sought to be adduced could not, with reasonable diligence, have been obtained for use at the trial. It is only upon a nding being made that the evidence could not have been obtained after exercise of due diligence that we will then proceed to address the two remaining questions as to whether the evidence will probably have an important inuence on the result of the appeal, and whether it is credible evidence. 14. In the present application, the applicants did not plead to, or bring any evidence to demonstrate the diculties they faced, and due diligence they undertook during the trial in the ELC to produce the surveyor’s report that they seek to introduce as additional evidence, particularly since their occupation of the suit property was a fact which was in issue in their claim, and they were specically given the opportunity by the trial Court to do so. In this regard, the record shows that after the applicants’ witnesses had testied, Mr. Onsongo made the following application in the trial Court on 25th May 2019: “ Onsongo: I apply to have the land registrar and country surveyor, to visit land Bukhayo/ bugengi/21 and carry out survey to ascertain the areas occupied by Leonard Dawafula And Anzelimo Okoth Juma (1st &2nd Plaintis) on the one hand, and Charles Ouma Masakhalia And Kennedy Ochieng Ouma (1st&2nd defendants). They should also ascertain whether there old boundary marks between the areas that the parties may be found to be occupying. The OCS Busia Police Station to ensure provision of security. Site visit on 4th October 2019. Court: Order granted as requested. A.K. Kaniaru – J 29/5/2019” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 5

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15. After several mentions to conrm if the surveyor had visited the site, Mr. Onsongo addressed the trial Court on 25th February 2020, as follows: “ Onsongo: We had taken directions for the court to visit the scene. We pray for directions that the matter do proceed from where it had reached. We pray for a date for the court to visit the scene. A.Omollo – J. 25/2/2020” The trial Court accordingly directed that the court visits the scene on 30/4/2929(sic). However, after several adjournments at the instance of the plaintis, an exasperated trial Court ruled as follows on 12th November 2011, when the plaintis’ counsel yet again sought another mention date and upon objection by the defendants’ counsel: “ The court was ready to do a court visit today hence the reason we xe(sic) less matters. It appears the plaintis are not keen to have the site visit made inspite of them requesting for the same. Consequently I order that the order made for the site visit be and is hereby vacated and the matter to proceed. Further hearing xed for 8/4/2021. Omollo – J 12/11/2020” 16. The defence hearing accordingly proceeded on 8/4/2021. It is also notable that the applicants did not produce any evidence to support their claim that the report was commissioned by the respondents. To this extent, there is evidently a risk that the additional evidence sought to be introduced by the applicant may be used to ll in gaps in the applicants’ case, or introduce a new case on appeal. In addition, the respondents will indeed suer prejudice, as they will not have the opportunity to crossexamine the maker of the survey report, which option would have been available to them had it been introduced in the trial Court. In the circumstances, we nd that the additional evidence does not falls within the parameters of the guidelines set out in Hon. Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamed and 3 others [supra] and we therefore decline to exercise our discretion in favour of the applicants for these reasons. 17. In the circumstances, the prayer in the Notice of Motion dated 21st October 2025 seeking leave to adduce additional evidence by way of an adavit, namely a report dated 17th October 2025 prepared by the County Surveyor of Busia County is not merited, and is accordingly dismissed with costs to the 1st and 2nd respondents. 18. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. P. NYAMWEYA. …………………………………… JUDGE OF APPEAL R. NGETICH …………………………………. JUDGE OF APPEAL RADIDO S. OKIYO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 6

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……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2068/eng@2026-07-17 7

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