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Supreme CourtDismissedPetition 32 (E036) & 35 (E038) of 2022 (Consolidated)

Fanikiwa Limited v Sirikwa Squatters Group & 20 others

Supreme Court of Kenya
16 June 2023
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimNjoki Susanna NdunguS. NjokiIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
6,425 words in judgment
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AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Supreme Court rejects late evidence attempt in long-running land dispute.

What this practically means

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Fanikiwa Limited tried to introduce new evidence at the Supreme Court stage of a land case involving Sirikwa Squatters Group. The court said no, because the evidence could have been presented earlier in the trial or appeal. The court found Fanikiwa was trying to fill gaps in its case, not bring genuinely new facts. The application was dismissed with no costs awarded.

Executive summary

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This was an application by Fanikiwa Limited seeking to adduce additional evidence in its pending appeal before the Supreme Court. The application arose from a long-running land dispute concerning nine parcels of land in Uasin Gishu. The Environment and Land Court had found that Sirikwa Squatters Group had a legitimate expectation to be allocated the suit properties, which had been surrendered by the registered owner, Lonrho Agribusiness (EA) Ltd, for their settlement. The trial court canceled all resultant titles. On appeal, the Court of Appeal upheld the finding of legitimate expectation for Sirikwa, varied the trial court's orders to protect innocent purchasers and financial institutions who had joined the appeal, and set aside an award of 27 hectares to Mark Too (a director of Fanikiwa). Fanikiwa, which was not a party at trial but participated in the appeal, then sought to introduce additional evidence in the Supreme Court, including an affidavit from Jeremy Hulme (former General Manager of Lonrho) claiming that a key letter dated November 9, 2000 was a forgery, and that the surrender was for conversion of tenure rather than settlement of squatters. The Supreme Court dismissed the application, applying the principles from Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad. The court found that the evidence could have been adduced earlier—Lonrho had been a party throughout and never raised the forgery claim—and that the application was an attempt to fill gaps and make a fresh case. The court ordered no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the threshold for the grant of leave to present additional evidence pursuant to rule 26 of the Supreme Court Rules, 2020.

Key legal issues

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01

Whether the applicant met the threshold for admission of additional evidence under rule 26 of the Supreme Court Rules, 2020.

Holding

The applicant did not meet the threshold because the evidence could have been adduced earlier, and the application was an attempt to fill gaps and make a fresh case.

Reasoning

The court applied the principles from Mohamed Abdi Mahamud. It found that the claim of forgery regarding the November 9, 2000 letter was raised for the first time at the Supreme Court, even though Lonrho Agribusiness (the 7th respondent and Mr. Hulme's former employer) had been a party since the trial court and never raised it. The evidence regarding surrender of titles for conversion was also a common thread from the start. The court concluded the application was an attempt to remove lacunae and fill gaps, not to present genuinely new evidence that could not have been obtained earlier.

p. 15

Legal principles established

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  • Additional evidence in the Supreme Court is allowed only sparingly and with caution.
  • The evidence must be directly relevant and could not have been obtained earlier with reasonable effort.
  • New evidence cannot be used to fill gaps or create a fresh case at the appeal stage.
  • A party cannot raise a claim of forgery for the first time at the Supreme Court if it was never raised before.
  • The Supreme Court applies strict criteria from the Mohamed Abdi Mahamud case to such applications.

Court orders

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  1. 1.The application dated January 9, 2023 is dismissed.
  2. 2.There shall be no order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Njoki Susanna Ndungu
S. NjokiSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Eldoret
Civil Appeal No. 45 of 2017 (consolidated with 44 of 2017 and 68 of 2017)
Jurisdiction invoked
Articles 10, 20, 24, 25, 159 and 259 of the Constitution; sections 20 and 21 of the Supreme Court Act; rules 3 and 26 of the Supreme Court Rules

Relief refused

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Admission of additional evidence as outlined in the affidavits of Sophia Chemengen Too and Jeremy Paul Henry Hulme

The application is an attempt to make a fresh case and does not meet the conditions precedent for admission of additional evidence as enunciated in Mohamed Abdi Mahamud.

p. 15

Costs

There shall be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated January 9, 2023 is dismissed.
p. 16 Final orders
There shall be no order as to costs.
p. 16 Costs order
it is our considered view that the application is an attempt by the applicant to make a fresh case in this petition. In a nutshell, the application has not met the conditions precedent enunciated in the Mohamed Abdi Mahamud case (supra).
p. 15 Failure to meet threshold for additional evidence
We cannot fathom why the applicant would wait until the 11th hour to make this claim. As such, we are not convinced that this evidence could not be adduced earlier.
p. 15 Lack of diligence in obtaining evidence

Key timeline

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2000-11-09
Key letter allegedly forged, according to Fanikiwa's later claim.
Trial court
Environment and Land Court ruled Sirikwa Squatters had legitimate expectation to land.
Court of Appeal
Appeal upheld legitimate expectation but varied orders to protect innocent buyers.
2023-01-09
Fanikiwa filed application to adduce additional evidence in Supreme Court.
2024
Supreme Court dismissed the application with no costs.

Practical implications

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For lawyers

Strict limits on late evidence

When handling appeals, ensure all critical evidence is presented at trial or in the first appeal. The Supreme Court will not allow you to introduce evidence that could have been obtained earlier, even if it seems crucial. Plan your case strategy to avoid last-minute applications.

For businesses

Act early on land disputes

If you are involved in a land case, gather and present all evidence at the earliest stage. Waiting until the Supreme Court to raise issues like forgery will likely fail. Engage a lawyer from the start to ensure your claims are properly documented and raised in trial or first appeal.

For individuals

Know your case timeline

If you are a squatter or land claimant, understand that courts expect all evidence to be presented early. You cannot wait until the final appeal to bring new facts. Work with your lawyer to build a complete case from the beginning to avoid losing your chance.

Frequently asked questions

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Can I introduce new evidence in the Supreme Court in Kenya?+

Yes, but only in very limited cases. The evidence must be directly relevant, could not have been obtained earlier with reasonable effort, and cannot be used to fill gaps in your case. The court allows it sparingly and with caution.

What happens if I try to add evidence late in a Kenyan land case?+

The court will likely reject it, as happened in Fanikiwa Limited v Sirikwa Squatters Group. You must present all evidence at trial or in the first appeal. Waiting until the Supreme Court is seen as an attempt to create a new case, which is not allowed.

What is the Mohamed Abdi Mahamud case in Kenya?+

It is a Supreme Court case that set the rules for admitting additional evidence in appeals. The evidence must be new, could not have been obtained earlier, and must not be used to fill gaps. Courts follow these strict rules to ensure fairness.

Can I claim forgery for the first time in the Supreme Court in Kenya?+

No. If you or a related party had the chance to raise forgery earlier in the trial or appeal, you cannot wait until the Supreme Court. The court will reject it as a late attempt to change your case, as seen in the Fanikiwa case.

Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fanikiwa Limited v Sirikwa Squatters Group & 20 others", Case Analysis (2023). Petition 32 (E036) & 35 (E038) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/57/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.