Criticos v Attorney General & 7 others (Civil Application 276 of 2020) [2026] KECA 249 (KLR)
The bottom line
#The Court of Appeal refused the County Government of Taita Taveta permission to introduce new evidence on appeal, citing delay, unfairness and attempts to patch weak arguments.
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 County Government of Taita Taveta should be granted leave to adduce additional evidence, being a letter dated 12th May 2021 from the National Land Commission and the Senate Standing Committee report dated 7th July 2021, in support of its cross-appeal
Key legal issues
#Whether evidence created after the judgment under appeal can be admitted as additional evidence on appeal under Rule 31(1)(b)
The Court declined to lay down a general rule but refused admission on these facts because the post-judgment documents would introduce fresh, unlitigated issues and patch up the applicant's case, contravening the Mohamed Abdi Mahamud principles.
The Court noted both documents were made after the trial judgment and while the appeal was pending, and that the squatter-settlement issue they concerned had never been pleaded before the ELC. Admitting them would cloud and confuse the issues the Court is mandated to consider, contrary to the Supreme Court's guidelines. The Court deliberately refrained from deciding whether post-judgment evidence is generally admissible.
Whether delay and prejudice disqualify the applicant from the discretionary relief
The applicant's inordinate, unexplained delay (filing two years and two months after the appellant's similar application was allowed, though documents were obtained in 2021) and the prejudice to the respondent, whose right to be heard was violated in the Senate proceedings, defeated the application.
The Court queried why the applicant delayed so long after the documents were obtained and after the appellant's own application was allowed in November 2022. It further held that the appellant, as registered owner, was never called to testify before the Senate before the adverse report was made, violating his right to a fair hearing, so admitting the report would be immensely prejudicial.
Legal principles established
#- Leave to adduce additional evidence on appeal is discretionary and granted only for sufficient reason, applying the guidelines in Mohamed Abdi Mahamud, including relevance, influence on the verdict, lack of reasonable diligence at trial, credibility, and absence of prejudice.
- Additional evidence should not be admitted to enable a party to make out a fresh case on appeal or to patch up weak points and fill omissions; the power must be exercised sparingly and with great caution.
- Unexplained inordinate delay in invoking the Court's discretion is a ground for refusing relief.
Court orders
#- 1.The application dated 28th January 2025 seeking leave to adduce additional evidence is dismissed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Petition No. 576 of 2012
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules
Relief refused
#Leave to adduce additional evidence (NLC letter dated 12th May 2021 and Senate Standing Committee report dated 7th July 2021) in support of the applicant's cross-appeal
The documents were created post-judgment, there was inordinate and unexplained delay in moving the Court, the evidence would introduce fresh issues not litigated at trial and patch up weak points, and it would be immensely prejudicial since the appellant was not heard before the Senate
Costs
The application is dismissed with costs to the appellant (Basil Criticos)
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.
In essence, leave to adduce additional evidence is a discretionary relief of this Court, and the Court grants such leave on the basis of ‘suficient reason’.
The introduction of these items of evidence in the appeal before us will only serve to introduce fresh issues not litigated in the suit before the trial court, from which the appeal arises.
The court has always frowned upon unexplained inordinate delay when called upon to invoke its discretion in favour of a party.
Accordingly, for the foregoing reasons, we find that this application fails to pass the test set in the decisions we have referred to above. The same is hereby dismissed with costs to the appellant.
Issues in the judgment
#The notice of motion is not properly intituled, bearing the appeal's heading instead of identifying the applicant and respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Criticos v Attorney General & 7 others (Civil Application 276 of 2020) [2026] KECA 249 (KLR)", Case Analysis (2026). Application dated 28th January 2025 in the Appeal from ELC Petition No. 576 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/249/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.