John Kiplangat Barbaret & 8 others v Isaiah Kiplagat Arap Cheluget [2016] KECA 714 (KLR)
The bottom line
#Kenya's Court of Appeal allowed two official land maps as new appeal evidence but refused an affidavit and an unrelated High Court judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants exercised reasonable diligence in obtaining the cartography maps
The explanation that the applicants did not know the maps existed was plausible, reasonable and credible; the maps being official public documents, they could not have been obtained at trial with reasonable diligence.
The court accepted that the maps were official public documents prepared neither by the applicants nor the respondents. The applicants' ignorance of their existence was credible, and the contents of the maps were incontrovertible. The court therefore exercised its discretion under Rule 29(1)(b) in the applicants' favour and admitted both maps as part of the record of appeal.
Whether the Nakuru High Court Petition No. 41 of 2013 and its judgment should be admitted as additional evidence
The court declined to admit the Nakuru petition proceedings and judgment as additional evidence.
The litigation in Nakuru Petition No. 41 of 2013 was still ongoing, and the judgment subject of the present appeal arose from a different case, Nakuru H.C. Misc Civil Application No. 400 of 2003. The court reasoned that admitting the petition judgment would risk conflating and confusing the main appeal, and declined prayers 1(a) and (d) of the motion.
Legal principles established
#- To succeed in an application under Rule 29, the applicant must show that the evidence could not have been obtained before or during the hearing with reasonable diligence, that it will probably have an important influence on the result, and that it is apparently credible.
- Evidence that an applicant did not know existed, being an official public document, may satisfy the reasonable-diligence test because one cannot obtain what one does not know exists.
Court orders
#- 1.Admitted as additional evidence the map for LR No. Narok/Cis-mara/Ilmotio/54 showing portion of the suit land occupied by the appellants
- 2.Admitted as additional evidence the air cartography map of 1971 showing the settlement status in Sagamian area
- 3.Directed that the two maps shall form part of the record of appeal
- 4.Declined to admit the supporting affidavit of John Kiplangat Barbaret as additional evidence
- 5.Declined to admit the Petition and judgment of the High Court at Nakuru in Nakuru HC Petition No. 41 of 2013 as additional evidence
- 6.Costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. C. Appl. No. 400 of 2003
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 29(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "John Kiplangat Barbaret & 8 others v Isaiah Kiplagat Arap Cheluget [2016] KECA 714 (KLR)", Case Analysis (2016). Civil Appeal Application No. 289 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/714/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.