185 approach, in Cyprian Awiti & Another v IEBC & 3 Others, Election Petition Appeal No. 5 of 2018, the Court of Appeal emphasised the approach of looking at the grounds raised substantively and not mere appellation. 6.3.2 Additional evidence on appeal 6.3.2.1 Although the Elections Act limits appeals to matters of law, following the 2017 election petition cycle there was a legal development that arose in relation to the powers of appellate courts to admit additional evidence on appeal. In the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others, Petitions 7 & 9 of 2018 (Consolidated), the appellant sought leave to adduce additional evidence for the first time at the Supreme Court, which was sitting on a second appeal. In allowing the Application and permitting the taking of additional evidence, the Supreme Court held: Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows: 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 influence 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 difficult or impossible for the other party to respond effectively; 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; i. The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find 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, fill up omissions or patch up the weak points in his/her case. BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION