Kobuthi & another v Marete (Environment and Land Appeal E007 of 2023) [2025] KEELC 7958 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the 1st Appellant has met the threshold for leave to adduce additional evidence
Key legal issues
#Whether the threshold for admitting additional evidence on appeal was met
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.
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.
Legal principles established
#- 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
#- 1.The Appellants to file and serve the additional documents within 14 days
- 2.The Respondent will have corresponding leave to respond and file any additional evidence he wishes to rely on
- 3.The application dated 14/2/2025 is allowed
- 4.The costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
The application dated 14/2/2025 is allowed. The costs of the application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.