https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1164

Cheptakum Kipsigis Farmers Ltd v Attorney General & 122 others (Civil Appeal (Application) E085 of 2023) [2026] KECA 1164 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1164 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E085 of 2023 JM Mativo, PM Gachoka & BM Kairaria, JJA June 12, 2026 Between Cheptakum Kipsigis Farmers Limited Applicant and The Attorney General & 122 others & 122 others Respondent ((An application for leave to adduce additional evidence in this appeal arising from the judgment and decree of the Nakuru Environment and Land Court (Mwangi Njoroge, J.) delivered on 25th May 2023 in ELCC No. 360 of 2013) Ruling 1.In its Notice of Motion dated 31st October 2025, the applicant has invoked sections 3A and 3B of the Appellate Jurisdiction Act and rule 31 (1) (b) of the Court of Appeal Rules 2022 seeking the following prayers:1.… Spent;2.That this Honourable Court be pleased to grant leave to the Appellant/ Applicant to adduce before it additional evidence vital to the just determination of the appeal;3.That in the alternative, this Honourable Court be pleased to direct the same to be taken by the trial court or in such manner and subject to such conditions as this Honourable Court deems appropriate;4.THAT this Honourable Court be pleased to admit on the record the following documents: the Registration of Titles Ordinance for IR No. 17653; a Transfer Instrument and the Memorandum of Registration of Transfer for L.R No. 10285; a letter dated 17th December 1989 and the Certificate of Lease for IR No. 880, all of which are necessary for a just and fair determination of this appeal;5.That costs of this application be in the cause. 2.The basis of the application is set out in the grounds on the body of the application, together with the supporting affidavits of Robert Kiplangat Mutai and Joseph Kipng’eno Kirui, the applicant’s directors, sworn on 31st October 2025. The facts giving rise to the application are that the applicant is the bona fide owner of all that parcel of land, formerly L.R No. 554/2, 3877 and 555/2, and now Molo South/Langwenda Block 8. The same was purchased with a view to subdividing the same amongst its shareholders. 3.On 28th November 1989, the deponents deposed that despite the above, the 2nd and 3rd respondents fraudulently colluded with strangers and surrendered the titles of the suit property to the Government of Kenya in consideration for an approval of a sub-divisional scheme without the knowledge or approval of the applicant. Thereafter, the suit land was subdivided by the said 2nd and 3rd respondent upon which title deeds were issued to the 5th - 123rd respondents. The applicant contended that this was done without their contribution to the purchase of the suit land. The resultant effect was to dispossess the applicant of its property. 4.It is on the basis of those facts that the applicant filed suit before the Nakuru ELC, ELCC No. 360 of 2013. However, Mwangi Njoroge, J., dismissed the suit with costs. The applicant urged this Court to allow the application for the reason that the new evidence that sought to be adduced could not, with the exercise of due diligence, have been discovered or adduced at trial by the applicant, as the documents were in the custody of the 3rd respondent and/or the Lands Registry at Ardhi House Nairobi. That the said evidence was not within his knowledge. 5.The applicant explained that the documents sought to be adduced shall address the question whether there was fraud, illegality, or procedural impropriety in the surrender, conversion, and subdivision of the suit parcel of land. They were thus material and relevant to disposing of the issues for determination. That they seek to clarify crucial aspects such as the chain of title ownership, and the questionable process of transfer and registration, demonstrating that the Government of Kenya was unlawfully interposed as a proprietor, contrary to the findings of the trial court. For those reasons, the applicant prayed that the application be allowed since no prejudice will be met upon the respondents. 6.The application was opposed by respondents. They relied on the replying affidavit of the 8th respondent sworn on 14th November 2025. It was deposed that the applicant specifically sought to introduce a copy of the RC 12 in 2023 that was obtained before the suit at the trial court was heard. The deponent deposed that the adducing of new evidence was prejudicial to the respondents as it was tantamount to introduction of new evidence that necessarily needs to be tested in cross- examination. 7.He continued that the actions of the applicant amounted to litigation in installments and endless litigation. In any event, subdivision was carried out in 1990. In their view, nothing was demonstrated to show that the evidence was denied by the trial court. The respondents asserted that no reasons had been advanced to grant the orders sought. For those reasons, they prayed that the application be dismissed with costs. 8.The application was heard virtually on 10th March 2026 in the presence of learned counsel Mr. Kipkoech for the applicant and learned counsel Mr. Ouma for the 7th- 62nd respondents. The Court was satisfied that the hearing notice was served on all parties and proceeded to hear the appeal on the basis of the parties’ written submissions. 9.The applicant filed written submissions and a list and bundle of authorities, both dated 30th November 2025. Learned counsel submitted that the application had met the threshold set out in rule 31 of the Court of Appeal Rules as interpreted by this Court in Gachuki & another vs. Njenga & 2 others [2025] KECA 451 (KLR) and the Supreme Court in Mahamud vs. Mohamad & 3 others [2018] KESC 62 (KLR). He reiterated the averments set out in the application urging this Court to grant the reliefs sought in light of paragraphs 28 and 31 of the impugned judgment of the trial court. He was emphatic that the application was not intended to remedy or patch gaps but struck at the very foundation of the impugned transactions. 10.The respondents filed written submissions dated 4th March 2026.Learned counsel present submitted that the applicant had not discharged its obligation in law to merit the exercise of discretion in his favor in accordance with rule 31 (1) of the Court of Appeal Rules. For this proposition, he relied on the case of Dorothy Nelima Wafula vs. Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR). 11.He further urged this Court to take into account the fact that the applicant intended to adduce company records as at 16th May 2023 when the same was an issue at the initial hearing. A finding was made by the court that the witnesses who testified did not adduce any documents creating a nexus between them and the applicant. Learned counsel prayed that the application be dismissed with costs. 12.We have anxiously considered the application, the affidavits as well as the annexures thereto. We have also considered the oral and written submissions of the parties and analyzed the law. The applicant seeks to adduce additional evidence in line with rule 31 (1) and (2) of the Court of Appeal Rules which provides as follows:“(1)On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power—1.to re-appraise the evidence and to draw inferences of fact; and2.in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court.(2)When additional evidence is taken by the Court, the evidence may be taken orally or by affidavit and the Court may allow the cross- examination of any deponent.” 13.The Supreme Court of Kenya in the case of Mahamud vs. Mohamad & 3 Others (Supra) laid down the governing principles on allowing additional evidence in appellate court 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;k.The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance 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.80.We must stress here that this Court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.” 14.We have already set out the relevant rule and the principles that have been laid out by the courts on this question. What comes out clearly is that this discretionary power should be exercised with care and based on a sufficient reason. Amongst the key conditions to be met is a clear and cogent demonstration that the evidence to be adduced could not have been obtained with reasonable diligence at the time of the trial or was not in the knowledge of the person seeking to adduce the additional evidence. This is an objective test, and it cannot be satisfied by a mere statement in an affidavit. A party must show that it indeed made efforts to obtain the evidence, but it failed, or that at the time of the trial it was not aware that evidence existed. Parties need to appreciate that rule 31 of the Rules of this Court is not meant to allow a party to fill gaps it failed to address in the trial court or reopen a case in the Court of Appeal to strengthen some weak points. A plain reading of the judgment of the Apex Court in Mahamud vs. Mohamad & 3 Others (Supra) demonstrates that there are instances where the additional evidence will be allowed at an appellate stage in the interest of justice but there are conditions that a party must meet. The question that now falls for determination is whether the applicant has met those conditions. 15.The documents sought to be introduced by the applicant are: the Registration of Titles Ordinance for IR No. 17653; Transfer Instrument dated 22 nd November 1989 ; Memorandum of Registration of Transfer for L.R No. 10285 of 1989; letter dated 17th December 989 and the Certificate of Lease for IR No. 880. The reasons advanced by the applicant in this application are that the evidence could not, with the exercise of due diligence, have been discovered or adduced at trial by the applicant, as the documents were in the custody of the 3rd respondent and/or the Lands Registry at Ardhi House Nairobi. 16.The documents that are being introduced are public documents.These documents are, as rightly stated by the applicant, in the Land Registry which existed even before the dispute arose. It is also common ground that the titles were surrendered to the government in 1989 and the subdivision was done in 1990. Indeed, on the face of the application, the documents that are sought to be adduced have been in existence since 1979. Even if one were to believe the applicants for a moment that they could not obtain the documents from the 3rd respondent, the least that the applicants can do is to show that they made efforts to obtain the documents, say by filing a notice to produce documents or applying for summons against the relevant officials or filing of an application in court for production of those documents. One may also ask: when did the applicants know that the documents in question were in existence and, taking into account the issues in the trial, is such an assertion believable? 17.This Court finds it hard to understand why the applicant never approached those offices while preparing for his suit. It cannot be said that it was not within its knowledge when it is the propounder of this case. It is trite practice that a person advancing a case against their adversaries must take all necessary steps to their case. It is not a gamble but an obligation upon them to persuade a trial court why the evidence adduced ought to sustain their claim. 18.As rightly set out by the respondents, this is a situation in which an appellant is litigating in installments or hoping to change the trajectory of the case at the appeal stage. Having considered the application, we have no doubt that the applicants are only trying to seal loopholes in their case. This is not the foundational basis of rule 31 of this Court’s Rules, and the Court refuses to swallow this bait. 19.It is for those reasons that we do not hesitate to find that the application herein lacks merit. It is dismissed with costs to the 2nd– 122nd respondents.It is so ordered. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. MATIVO...................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb....................................JUDGE OF APPEAL MURUNGI B. KAIRARIA...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar