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Case Brief · caselaw.co.ke
ELCDismissedELCLA Case No E192 of 2025· [2026] KEELC 5658 (KLR)

Kenya National Highways Authority v Abdul Waheed Sheikh & Abdul Hameed Sheikh (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) & 2 others

Environment and Land Court
24 September 2026
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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KeNHA lost its bid to introduce new documents in its land compensation appeal because the ownership dispute they concerned had already been decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Milimani (Mohammed N. Kullow, J) on a Notice of Motion dated 12th February 2026 by the Kenya National Highways Authority, the Appellant in an appeal from the Land Acquisition Tribunal's decision of 9th September 2025 in TRLAP E054 of 2024. KeNHA sought leave to adduce additional documents - pleadings in Nairobi ELC Cause 102 of 2008 - as evidence by affidavit and supplementary record of appeal, contending that an ownership dispute over the suit land had been concealed from the tribunal and was relevant to halting compensation to the 1st Respondent trust. The 1st Respondent opposed, showing that the ownership dispute in ELC 102 of 2008 had been determined on 26th February 2026 by Justice Angote, who dismissed third-party proprietary claims on adverse possession grounds; the 3rd Respondent supported dismissal. The court framed two issues: its legal basis to admit additional evidence on appeal, and whether the threshold was met. Relying on section 78(1)(d) of the Civil Procedure Act, Order 42 Rule 27 and Articles 50(1) and 159(2)(d) of the Constitution, it confirmed jurisdiction but applied the Mohamed Abdi Mahamud criteria. Since the ownership dispute stood determined, the proposed evidence could not influence the appeal. The application was dismissed with costs abiding the appeal's outcome.

Key legal issues

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01

Jurisdiction to admit additional evidence at appellate stage

Holding

The court has jurisdiction under section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27

Reasoning

The statutory framework permits an appellate court, in appropriate circumstances, to receive additional evidence, subject to careful and sparing exercise of judicial discretion, guided by Articles 50(1) and 159(2)(d) on fair hearing and justice without undue regard to procedural technicalities.

p. 5
02

Whether the threshold for admitting the ELC 102 of 2008 pleadings was met

Holding

Not met; the application failed because the ownership dispute had been determined, so the evidence could not influence the appeal

Reasoning

The judgment in ELC 102 of 2008 dismissed third-party claims to proprietary rights, attributing ownership to the 1st Respondent on adverse possession grounds. The existence of an ownership dispute was therefore no longer live, rendering the proposed evidence incapable of influencing the appeal's outcome.

p. 6

Legal principles established

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  • Additional evidence on appeal may be admitted where directly relevant, capable of influencing the outcome, not obtainable with reasonable diligence at trial, removing doubt on a central issue, credible, and not intended to fill gaps or patch weak points

Court orders

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  1. 1.The Notice of Motion application dated 12th February 2026 is without merit and is hereby dismissed.
  2. 2.Costs of the application shall abide the outcome of the appeal.
On appeal from
Land Acquisition Tribunal at Nairobi
TRLAP E054 of 2024
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, guided by Articles 50(1) and 159(2)(d) of the Constitution

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, "Kenya National Highways Authority v Abdul Waheed Sheikh & Abdul Hameed Sheikh (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) & 2 others", Case Analysis (2026). ELCLA Case No E192 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5658/eng@2026-09-24

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