Cheptakum Kipsigis Farmers Ltd v Attorney General & 122 others (Civil Appeal (Application) E085 of 2023) [2026] KECA 1164 (KLR)
The bottom line
#Kenya's Court of Appeal refused to accept new documents on appeal because the party could have obtained them before trial.
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 applicant has met the conditions for leave to adduce additional evidence on appeal under rule 31(1)(b) of the Court of Appeal Rules, 2022, as interpreted in Mahamud vs. Mohamad & 3 Others
- 2.Whether the documents sought to be introduced could not, with reasonable diligence, have been obtained for use at the trial
- 3.Whether the application is an attempt to fill gaps in the applicant's case at the appellate stage
Key legal issues
#Whether the additional evidence sought could not have been obtained with reasonable diligence for use at the trial
The court found the due-diligence threshold was not met: the documents were public documents in the Land Registry, in existence since 1979/1989, and the applicant showed no efforts to obtain them.
The court held the due-diligence test is objective and cannot rest on bare affidavit assertions. The documents were public records in existence long before the dispute, held at the Land Registry. The applicant, as propounder of the case, gave no evidence of attempts to obtain them - no notice to produce, no summons to officials, no court application for production. Failure to approach the registry while preparing for suit meant the evidence was within its reach and knowledge.
Whether the application was an attempt to fill gaps and litigate in installments
The court held the application was an attempt to seal loopholes and change the trajectory of the case on appeal, contrary to the purpose of rule 31.
Relying on the Mahamud principles that additional evidence must not be used to remove lacunae, fill gaps, or patch weak points, the court accepted the respondents' characterisation of the application as litigation in installments. The trial court had found no nexus between the witnesses and the applicant; the new documents sought to remedy precisely that evidential deficiency. The court declined to permit such use of rule 31, applying the principles sparingly and with abundant caution.
Legal principles established
#- An applicant for leave to adduce additional evidence on appeal must objectively demonstrate that it made efforts to obtain the evidence at trial, or that it was unaware the evidence existed; a mere statement in an affidavit does not discharge this burden.
- Rule 31 of the Court of Appeal Rules is not a vehicle for filling trial-stage gaps or reopening a case on appeal to strengthen weak points.
- Where documents are public documents held by a registry, a party asserting due diligence must show steps such as a notice to produce, summons to officials, or a court application for production.
- A litigant advancing a case must take all necessary steps to gather its evidence before trial; litigation is not a gamble and cannot be conducted in installments.
Court orders
#- 1.The Notice of Motion dated 31st October 2025 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application awarded to the 2nd-122nd respondents
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nakuru (ELC)
- ELCC No. 360 of 2013
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 31(1)(b) of the Court of Appeal Rules, 2022
Relief refused
#Leave to adduce additional evidence vital to the just determination of the appeal, and admission on the record of specified documents (Registration of Titles Ordinance for IR No. 17653; Transfer Instrument and Memorandum of Registration of Transfer for L.R No. 10285; letter dated 17th December 1989; Certificate of Lease for IR No. 880)
The documents were public documents in existence before the dispute and long available at the Land Registry; the applicant failed to demonstrate due diligence or any efforts to obtain them at trial, and the application was an attempt to seal loopholes in its case
Costs
The application is dismissed with costs to the 2nd-122nd respondents.
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.
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.
This is an objective test, and it cannot be satisfied by a mere statement in an affidavit.
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.
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.
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.
Issues in the judgment
#A paragraph number ('80.') from the quoted Supreme Court judgment appears embedded mid-passage in the reproduction of the Mahamud principles, disrupting the text.
The date of one of the documents sought to be adduced is inconsistently rendered ('letter dated 17th December 989' versus 'letter dated 17th December 1989').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheptakum Kipsigis Farmers Ltd v Attorney General & 122 others (Civil Appeal (Application) E085 of 2023) [2026] KECA 1164 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1164/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.