Attorney General & 3 others v Tott & 8 others (Civil Appeal (Application) 156 of 2019) [2024] KECA 1275 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a county government to introduce newly discovered land documents in its appeal, showing post-trial evidence can be admitted under strict conditions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether there is additional evidence
- 2.whether the additional evidence would have influenced or impacted upon the outcome of the case
- 3.whether the applicants have demonstrated that they could not, with reasonable diligence, have obtained the evidence for use at the trial
- 4.whether the 1st respondent will be prejudiced if the production of the additional evidence is allowed
Key legal issues
#Existence and relevance of the proposed additional evidence
The annexures MM1 to MM18 contain additional evidence relevant to the history of ownership of the suit property.
The court perused the application and annexures MM1 through MM18 and found they contain additional evidence concerning the ownership history of the suit property. It held that even if some documents were already on record, no harm was occasioned, and whether the trial court considered them is a matter for the appeal hearing.
Influence on the outcome
The evidence would have had a bearing on the ownership question central to whether the 1st respondent deserved compensation.
The court found the annexures speak to the ownership history of Eldoret Municipality Block 22 (Langas), including transfer documents and prior court decisions, and would have assisted on the crucial ownership question determining compensation.
Reasonable diligence
The evidence, tracing to the pre-independence period, could not with reasonable diligence have been obtained for the trial; its existence was not within the applicants' knowledge then.
The court accepted that time-consuming investigation was needed to unearth the pre-independence documents and that there was no evidence the applicants knew of them at trial. Although the complaint about affidavit-based trial procedure should have been raised below, the existence of the evidence was not within the applicants' knowledge during the trial.
Prejudice to the 1st respondent
No foreseeable prejudice; the 1st respondent will be given an opportunity to respond to the new evidence.
The court noted the 1st respondent's father was a party to prior suits (Eldoret SRM Civil Suit No. 52 of 1985 and Eldoret HC Civil Appeal No. 60 of 1987) which would ordinarily have been within his knowledge, and that he will have an opportunity to reply, minimising prejudice.
Competence of the deponent of the supporting affidavit
The complaint that Mr. Allan Kamau was not competent to swear the affidavit lacked merit; he spoke only to the availability of the evidence, not its evidentiary value.
The court held that Mr. Kamau, as counsel involved in attempted settlement, could depose to the availability of the new evidence, and the court was not testing the evidentiary value of the evidence at this interlocutory stage.
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 is allowed sparingly and on a case-by-case basis, applying the Mohamed Abdi Mahamud principles.
Court orders
#- 1.Leave granted to the applicants to adduce and file additional evidence limited to annexures MM1 to MM18
- 2.The additional evidence to be adduced by means of affidavit and filed as a supplementary record of appeal within 14 days
- 3.The 1st respondent and any other party desirous of responding to file a replying affidavit within 14 days of service
- 4.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
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 31 (formerly 29), 42 and 43 of the Court of Appeal Rules, 2022
Relief refused
#Broader leave beyond the 18 listed documents
Leave was limited to annexures MM1 to MM18; no other refusal recorded
Costs
Costs of this application shall 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.
we find that the notice of motion dated 20th December 2023 has merit and we allow as follows:
Leave be and is hereby granted to the applicants to adduce and file additional evidence limited to annexures MM1 to MM18;
Costs of this application shall 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;
The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence.
There is no evidence to show that the existence of the documents was known to the applicants during the trial.
Issues in the judgment
#The judgment cites the same Supreme Court decision under two different years, [2020] eKLR when raised by counsel and [2019] eKLR when the court quotes it.
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.
- Criticos v Attorney General & 7 others (Civil Application 276 of 2020) [2026] KECA 249 (KLR)[2026] KECA 249 (KLR)13 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Attorney General & 3 others v Tott & 8 others (Civil Appeal (Application) 156 of 2019) [2024] KECA 1275 (KLR)", Case Analysis (2024). Notice of motion dated 20th December 2023 in a pending appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1275/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.