Hon. Basil Criticos v The Hon Attorney General & 7 others
The bottom line
#The Court of Appeal refused the County Government of Taita Taveta permission to introduce new evidence on appeal, citing delay, unfairness and attempts to patch weak arguments.
What this practically means
#Executive summary
#Key legal issues
#Whether evidence created after the judgment under appeal can be admitted as additional evidence on appeal under Rule 31(1)(b)
The Court declined to lay down a general rule but refused admission on these facts because the post-judgment documents would introduce fresh, unlitigated issues and patch up the applicant's case, contravening the Mohamed Abdi Mahamud principles.
The Court noted both documents were made after the trial judgment and while the appeal was pending, and that the squatter-settlement issue they concerned had never been pleaded before the ELC. Admitting them would cloud and confuse the issues the Court is mandated to consider, contrary to the Supreme Court's guidelines. The Court deliberately refrained from deciding whether post-judgment evidence is generally admissible.
Whether delay and prejudice disqualify the applicant from the discretionary relief
The applicant's inordinate, unexplained delay (filing two years and two months after the appellant's similar application was allowed, though documents were obtained in 2021) and the prejudice to the respondent, whose right to be heard was violated in the Senate proceedings, defeated the application.
The Court queried why the applicant delayed so long after the documents were obtained and after the appellant's own application was allowed in November 2022. It further held that the appellant, as registered owner, was never called to testify before the Senate before the adverse report was made, violating his right to a fair hearing, so admitting the report would be immensely prejudicial.
Legal principles established
#- Leave to adduce additional evidence on appeal is discretionary and granted only for sufficient reason, applying the guidelines in Mohamed Abdi Mahamud, including relevance, influence on the verdict, lack of reasonable diligence at trial, credibility, and absence of prejudice.
- Additional evidence should not be admitted to enable a party to make out a fresh case on appeal or to patch up weak points and fill omissions; the power must be exercised sparingly and with great caution.
- Unexplained inordinate delay in invoking the Court's discretion is a ground for refusing relief.
Court orders
#- 1.The application dated 28th January 2025 seeking leave to adduce additional evidence is dismissed with costs to the appellant
- On appeal from
- Environment and Land Court at Nairobi
- ELC Petition No. 576 of 2012
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Basil Criticos v The Hon Attorney General & 7 others", Case Analysis (2026). Application dated 28th January 2025 in the Appeal from ELC Petition No. 576 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/249/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.