Kenya National Highways Authority v Shayona Timber Limited (Civil Appeal (Application) 156 of 2020) [2026] KECA 492 (KLR)
The bottom line
#The Court of Appeal refused KeNHA's bid to introduce new evidence on appeal because it delayed too long in gathering its own proof of payment.
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 applicant should be granted leave to amend its memorandum of appeal
- 2.Whether the applicant should be granted leave to adduce additional documentary evidence (a letter from the State Department of Infrastructure and CBK bank statements) on appeal
- 3.Whether the additional evidence meets the Mohamed Abdi Mahamud principles, in particular whether it could not have been obtained with reasonable diligence for use at the trial
Key legal issues
#Whether the additional evidence sought could not have been obtained with reasonable diligence for use at the trial
It could not: the applicant knew from 2012 that proof of payment was required, its enquiry to the State Department was made only six months after judgment, and it waited three years after receiving the reply before moving the court.
The applicant's counsel told the trial court he would avail proof of payment, showing awareness from at least 2012. The letter relied on as demonstrating diligence was a response to an enquiry made about six months after judgment was delivered. Thereafter the applicant waited three years, from 9th March 2021 until 14th October 2024, to bring the application, with no explanation. This unexplained, repeated and prolonged indolence placed the application outside the Mahamud parameters.
Whether public interest in forestalling double compensation can override the diligence requirement
No; even assuming a public interest in avoiding double payment of public money, indolence disentitles the party under the Mahamud principles.
The court accepted the argument that avoiding waste of public money on double compensation has public-interest appeal, but held that allowing additional evidence despite unexplained, repeated and prolonged indolence would do violence to the Mohamed Abdi Mahamud principles, which bind this Court's consideration under rule 31(1)(b) of the Court of Appeal Rules, 2022.
Whether the additional evidence has a direct bearing on the issue it seeks to address
It does not: the letter and CBK statements do not reveal the person to whom the payment of Kshs. 6,297,690 was made.
The additional evidence was meant to prove payment of Kshs.6,297,690 to Mr. Crawford as part compensation for compulsorily acquired land, yet the documents do not disclose the payee. The respondent's point that the evidence lacks a direct bearing on the issue it purports to prove was found not to be idle, so the evidence would also fail the relevance and impact limbs of the Mahamud test.
Legal principles established
#- Leave to adduce additional evidence on appeal under rule 31(1)(b) of the Court of Appeal Rules, 2022 is governed by the Mohamed Abdi Mahamud principles, and will be granted sparingly and with abundant caution; indolence and lack of reasonable diligence disentitle a party even where public interest in avoiding double payment of compensation is asserted.
- An application to amend a memorandum of appeal in the Court of Appeal is for a single judge under Rule 55, subject to reference to the full court under Rule 57, and the full court will not entertain it in the first instance.
Court orders
#- 1.The court declined to consider the prayer for leave to amend the memorandum of appeal, that being the remit of a single judge under Rule 55
- 2.The notice of motion dated 14th October 2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules, 2022 (leave to adduce additional evidence on appeal)
Relief refused
#Leave to amend the memorandum of appeal
The application to amend a memorandum of appeal is the remit of a single judge under Rule 55, and the court would not short-circuit that procedure or the right of reference under Rule 57
Leave to adduce additional evidence (letter dated 9th March 2021 and CBK bank statements)
The applicant failed to show reasonable diligence: it knew since 2012 that proof of payment was required, made its enquiry only six months after judgment, and took three years after receiving the letter to bring the application; the evidence would fill gaps and patch the weak points in its case, contrary to the Mahamud principles
Costs
The notice of motion dated 14th October 2024 is dismissed with costs to the respondent.
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.
These are the parameters that guide this Court in considering whether to allow additional evidence under rule 31(1)(b) of the Court of Appeal Rules, 2022.
it would do violence to the principles set out in Mohamed Abdi Mahamud to allow adduction of additional evidence where there has been unexplained, repeated and prolonged indolence on the part of the applicant.
From whatever angle we consider the notice of motion dated 14th October 2024, it is without merit. It is hereby dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Shayona Timber Limited (Civil Appeal (Application) 156 of 2020) [2026] KECA 492 (KLR)", Case Analysis (2026). Notice of motion dated 14th October 2024 (memorandum of appeal dated 31st March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/492/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.