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ELCAllowedEmbu ELC Appeal arising from Embu CM ELC Case No. 69 of 2018

Kobuthi & another v Marete (Environment and Land Appeal E007 of 2023) [2025] KEELC 7958 (KLR)

Environment and Land Court
12 November 2025
2,507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed new evidence on appeal because it exposed a jurisdiction problem and could end a long-running land dispute.

What this practically means

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Executive summary

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This Environment and Land Court at Embu decision, delivered virtually by K. Bor, J, on 12 November 2025, determines an application dated 14 February 2025 by the 1st Appellant for leave to adduce additional evidence in a first appeal from the judgment of the Embu Chief Magistrate's Court in ELC Case No. 69 of 2018, in which the Appellants were ordered evicted from land known as Gaturi/Nembure/708. The Appellants sought to introduce three categories of evidence: a valuation report showing the land's value exceeded the trial court's pecuniary jurisdiction; tea production and sale records demonstrating over 60 years of occupation supporting adverse possession; and burial permits and evidence of graves on the land. The Respondent did not respond to the application but opposed it in submissions, arguing the evidence was obtainable at trial with reasonable diligence, that the valuation report was manufactured after judgment, and that the application attempted to patch up a weak case. The court, applying Section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27(1)(b) of the Civil Procedure Rules and the Ladd v Marshall principles, found the explanation of lack of legal representation and limited understanding persuasive, held that jurisdiction may be raised at any stage, and held it in the interest of justice to admit the evidence so the adverse possession claim could be considered on appeal and litigation brought to finality. The application was allowed, with the Appellants to file the additional documents within 14 days and the Respondent granted corresponding leave to respond; costs were made to abide the appeal's outcome.

Questions the Court framed

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

  1. 1.whether the 1st Appellant has met the threshold for leave to adduce additional evidence

Key legal issues

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01

Whether the threshold for admitting additional evidence on appeal was met

Holding

The application was allowed; the valuation report raising pecuniary jurisdiction, tea production records and burial permits were admitted to enable the court to deal with the adverse possession claim and bring finality to the litigation.

Reasoning

The court applied Section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27(1)(b) of the Civil Procedure Rules and the Ladd v Marshall test. It accepted the explanation of lack of legal representation, ignorance of evidentiary significance and the applicants' limited means as excusing non-production at trial. Since the valuation evidence goes to jurisdiction, which may be raised at any time, and since the adverse possession claim could not be entertained by a trial court lacking jurisdiction, the interest of justice favoured admission so that the appeal court could consider the claim and bring litigation over the suit land to finality.

p. 5

Legal principles established

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  • Fresh evidence on appeal may be admitted only under the Ladd v Marshall conditions: not obtainable with reasonable diligence at trial, likely important influence on the result, and apparently credible.
  • A question of pecuniary jurisdiction, being a matter of law, may be raised at any stage of the proceedings.

Court orders

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  1. 1.The Appellants to file and serve the additional documents within 14 days
  2. 2.The Respondent will have corresponding leave to respond and file any additional evidence he wishes to rely on
  3. 3.The application dated 14/2/2025 is allowed
  4. 4.The costs of the application shall abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Embu Chief Magistrate's Court
ELC Case No. 69 of 2018
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27(1)(b) of the Civil Procedure Rules, 2010

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.

First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Second, the evidence must be such that, if given, it would probably have an important infiuence on the result of the case, though it need not be decisive.
p. 4Ladd v Marshall test for additional evidence
The question of pecuniary jurisdiction goes to the validity of the proceedings before the trial court and cannot be disregarded simply because the evidence supporting it was not produced earlier.
p. 4Jurisdiction may be raised at any stage
To bring litigation over the suit land to finality and in light of the trial court’s lack of jurisdiction to entertain a claim of adverse possession, it is in the interest of justice to allow the introduction of the new evidence and consider the adverse possession claim at this stage.
p. 5Interest of justice in admitting new evidence
The application dated 14/2/2025 is allowed. The costs of the application shall abide the outcome of the appeal.
p. 5Disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kobuthi & another v Marete (Environment and Land Appeal E007 of 2023) [2025] KEELC 7958 (KLR)", Case Analysis (2025). Embu ELC Appeal arising from Embu CM ELC Case No. 69 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7958/eng@2025-11-12

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