David Kiptum Yator & 23 Others v Attorney General & 14 Others
The 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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have met the threshold for admission of additional evidence on appeal
Key legal issues
#Whether the threshold for admission of additional evidence on appeal was met
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.
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.
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Oral or affidavit evidence in support of the additional evidence
The Gazette Notice is an official government publication that speaks for itself
Costs
The costs of the application will abide the outcome of the appeal.
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.
For the foregoing reasons, we will allow the application dated 21st May 2026 and admit Gazette Notice 6521 Vol CXXVII-No 230 of 14th November of 2025 as additional evidence.
The costs of the application will abide the outcome of the appeal.
The additional evidence must be directly relevant to the matter before the court and be in the interest of justice
A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case on appeal, fill up omissions or patch up the weak points in their case
Issues in the judgment
#Gazette Notice number inconsistently rendered as 16521 and 6521 within the same ruling
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.