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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2026] KECA 1164 (KLR)

Cheptakum Kipsigis Farmers Limited v The Attorney General & 122 Others & 122 Others

Court of Appeal of Kenya
12 June 2026
2,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal, Nakuru (Mativo, Gachoka and Kairaria, JJ.A), delivered on 12th June 2026, on a Notice of Motion dated 31st October 2025 brought under sections 3A and 3B of the Appellate Jurisdiction Act and rule 31(1)(b) of the Court of Appeal Rules, 2022. The applicant, a company that claimed ownership of land formerly L.R No. 554/2, 3877 and 555/2 (now Molo South/Langwenda Block 8), sought leave to adduce additional evidence on appeal against the dismissal of its suit, Nakuru ELC ELCC No. 360 of 2013 (Mwangi Njoroge, J), namely documents evidencing title, transfer and surrender of the suit land. It contended the documents were in the custody of the 3rd respondent or the Lands Registry at Ardhi House and could not have been obtained with due diligence. The respondents opposed, arguing the evidence was available before trial and that the application amounted to litigation in installments. Applying the principles in Mahamud vs. Mohamad & 3 Others, the court held that the due-diligence requirement is objective and cannot rest on mere affidavit statements. The documents were public records in existence since 1979/1989 and the applicant, as propounder of the case, showed no efforts - no notice to produce, summons, or court application - to obtain them. The court found the application was an attempt to seal loopholes and litigate in installments, contrary to the purpose of rule 31, and dismissed it with costs to the 2nd-122nd respondents. The underlying appeal proceeds separately; no final orders were made on the appeal itself.

Key legal issues

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01

Whether the additional evidence sought could not have been obtained with reasonable diligence for use at the trial

Holding

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.

Reasoning

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.

p. 5
02

Whether the application was an attempt to fill gaps and litigate in installments

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 31st October 2025 seeking leave to adduce additional evidence is dismissed
  2. 2.Costs of the application awarded to the 2nd-122nd respondents
  3. 3.It is so ordered
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

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cheptakum Kipsigis Farmers Limited v The Attorney General & 122 Others & 122 Others", 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.