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Court of AppealPartially AllowedCivil Appeal (Application) No EO73 of 2026 [Formerly Kisumu Civil Application No E249 of 2021]· [2026] KECA 2055 (KLR)
David Kiptum Yator & 23 Others v Attorney General & 14 Others
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·~11 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal allowed Sengwer community appellants to add a 2025 land commission decision as new evidence in their Embobut Forest appeal.
What this practically means
#Executive summary
#This ruling of the Court of Appeal at Eldoret (Gachoka, Nderi & Ndolo, JJ.A.) determines a notice of motion dated 21st May 2026 by 24 applicants seeking leave to adduce additional evidence in their pending appeal against the judgment of the Environment and Land Court (Kibunja, J.) of 13th May 2020, which dismissed their petition asserting Sengwer Community rights over Embobut Forest. The ELC had held the Forest was gazetted as a government forest, hence public land under Article 62(1)(g) of the Constitution, and referred historical land injustice claims to the National Land Commission. The applicants sought to introduce Special Issue Gazette Notice No 16521 Vol CXXVII-No 230 of 14th November 2025, containing the NLC's decision on a complaint by the Sengwer Council of Elders. The 1st-4th and 6th-14th respondents opposed, arguing the evidence post-dated trial, raised unpleaded issues and would prejudice them; Katiba Institute, the interested party, supported the application. The court framed a single issue: whether the threshold for admission of additional evidence on appeal under rule 31 of the Court of Appeal Rules was met. Applying the Mohamed Abdi Mahamud principles, the court allowed the application, admitting the Gazette Notice by way of a supplementary record only, with no oral or affidavit evidence, and granting liberty to file supplementary submissions. Costs of the application abide the outcome of the appeal. The substantive appeal remains pending.
Key legal issues
#01
Whether the threshold for admission of additional evidence on appeal was met
Holding
The Gazette Notice containing the National Land Commission's decision met the criteria: it was directly relevant, unavailable at trial, credible as an official publication, not voluminous, and not prejudicial.
Reasoning
The court applied the Mohamed Abdi Mahamud principles. The Gazette Notice post-dated the ELC judgment by four years, so it could not have been obtained with reasonable diligence at trial. As an official government publication it is credible without cross-examination, and it bears directly on the historical land injustice issue the trial court referred to the NLC.
p. 19
Legal principles established
#- On an appeal from a superior court exercising original jurisdiction, the Court of Appeal may in its discretion and for sufficient reason take additional evidence or direct that it be taken by the trial court.
- Additional evidence on appeal must satisfy the Mohamed Abdi Mahamud criteria: direct relevance, influence on the result, inability to obtain it with reasonable diligence at trial, credibility, and absence of prejudice.
Court orders
#- 1.The application dated 21st May 2026 is allowed
- 2.Gazette Notice 6521 Vol CXXVII-No 230 of 14th November 2025 is admitted as additional evidence
- 3.The Gazette Notice shall be added to the record by way of a supplementary record and no further evidence shall be adduced orally or by affidavit
- 4.Parties are at liberty to file supplementary submissions on the additional evidence
- 5.Costs of the application to abide the outcome of the appeal
- On appeal from
- Environment and Land Court at Eldoret
- Eldoret ELC Petition No 15 of 2013 as consolidated with Eldoret ELC Petition No 3 of 2018
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 31 and 44 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiptum Yator & 23 Others v Attorney General & 14 Others", Case Analysis (2026). Civil Appeal (Application) No EO73 of 2026 [Formerly Kisumu Civil Application No E249 of 2021]. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2055/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.