David Kiptum Yator & 23 Others v Attorney General & 14 Others

AND THE ATTORNEY GENERAL …………………….. 1ST RESPONDENT THE KENYA FOREST SERVICE 2ND RESPONDENT ZONAL FOREST MANAGER (MARAKWET DISTRICT) ……..…………………. 3RD RESPONDENT THE DISTRICT COMMISSIONER (MARAKWET DISTRICT) ………………………... 4TH RESPONDENT THE NATIONAL LAND COMMISSION 5TH RESPONDENT Page 2 of 12

page 2 of 21

THE DIRECTOR OF KFS EMILIO N. MUGO....................................6TH RESPONDENT KFS COMMANDANT ALEX LEMARKOKO.................................7TH RESPONDENT KFS NORTH RIFT COMMANDANT STEPHEN CHESA ……………..…..……………... 8TH RESPONDENT KFS HEAD OF CONSERVANCY NORTH RIFT, DEDAN NDERITU................9TH RESPONDENT KFS COUNTY CONSERVATOR ELGEYO MARAKWET COUNTY, ANDREW SOI.......10TH RESPONDENT KFS FORESTER, KAPYEGO/ TIRAP STATIONS..................................11TH RESPONDENT ELGEYO MARAKWET COUNTY COMMISSIONER, FREDICK NDAMBUKI. . .12TH RESPONDENT ELGEYO MARAKWET DEPUTY COUNTY COMMISSIONER, STEPHEN SANGALO. . . .13TH RESPONDENT ELGEYO MARAKWET NATIONAL POLICE SERVICE COUNTY COMMANDER............14TH RESPONDENT KATIBA INSTITUTE …………………………….. 15TH RESPONDENT (Application for leave to adduce further evidence in an appeal from the Judgment of the Environment and Land Court at Eldoret (Kibunja, J.) dated 13th May 2020 in Eldoret ELC Petition No 15 of 2013 as consolidated with Eldoret ELC Petition No 3 of 2018) ********************** RULING OF THE COURT 1. This ruling determines the notice of motion dated 21st May 2026 brought by the applicants, pursuant to sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 31 and 44 of the Court of Appeal Rules. By their motion, the applicants seek leave to adduce additional evidence in the form of Special Issue Gazette Notice No 16521 Vol CXXVIIPage 3 of 12

page 3 of 21

No 230 of 14th November 2025, together with an affidavit sworn by David Kiptum Yator producing the said evidence. Page 4 of 12

page 4 of 21

2. The brief litigation history of the matter from which the application proceeds is that: the 1st, 2nd and 3rd applicants had initiated Eldoret ELC Petition No 15 of 2013, in their capacity as leaders of the Sengwer Community, against the 1st, 2nd, 3rd, 4th and Simultaneously, the 5th respondents. 4th – 24th applicants had initiated Eldoret ELC Petition No 3 of 2018, on their own behalf and as representatives of the Sengwer Community of Embobut Forest and Cherengany Hills, seeking to prevent eviction of members of the Community from Embobut Forest. The 15th respondent was named as an interested party in ELC Petition No 15 of 2013. The petitions were consolidated and a joint judgment was rendered by the Environment and Land Court (ELC) at Eldoret (Kibunja, J.) on 13th May 2020. 3. In their petition before the ELC, the applicants had presented several grievances concerning the rights of the Sengwer Community over Embobut Forest, key among them being the gazettement of Embobut Forest, as a government forest. The applicants had argued that the Forest was their ancestral land and its gazettement placed it within the realm of public land, depriving the Sengwer Community of their proprietary, cultural and religious rights. 4. In a judgment dated 13th May 2020, the ELC dismissed the petition, terming the argument that Embobut Forest is community land as unfounded, on account of Proclamation No 26 of 1954 and Legal Notice No 174 of 20 th May 1964, which declared the Forest a government forest, leading to Page 5 of 12

page 5 of 21

its classification as public land under Article 62(1)(g) of the Constitution. The court further held that the 5 th respondent Page 6 of 12

page 6 of 21

being, the National Land Commission, was the proper entity to address any historical land injustices suffered by the Sengwer Community. 5. Being aggrieved by the ELC judgment, the applicants lodged an appeal before this Court on 24 th December 2021. The appeal is pending determination. 6. Prior to this, the Sengwer Council of Elders had, on 20 th September 2021, lodged a complaint with the 5th respondent on behalf of the Sengwer Community living in and around Cherangany Hills and forests in West Pokot and Elgeyo Marakwet Counties. The complaint raised two claims: one for ancestral land alienated by white settlers during the colonial era, and second, over land alienated to establish government forests. The 5 th respondent rendered its decision on 14th November 2025, vide Special Issue Gazette Notice 16521 Vol CXXXVII-No 230, which the applicants now seek to introduce as additional evidence on appeal. 7. The main grounds on which the applicants anchor their plea for introduction of this piece of evidence are that: a) The Gazette Notice removes any vagueness or doubt over whether the ELC was in any way barred from wading into the merits of the applicants’ ancestral claims; b) The Gazette Notice removes any lingering uncertainty as to the powers of this Court in exercise of appellate jurisdiction; c) Had the 5th respondent participated in the ELC proceedings by responding to the Page 7 of 12

page 7 of 21

petition, the ELC would have determined the applicants’ ancestral claims; Page 8 of 12

page 8 of 21

d) Being an official public document, the Gazette Notice is credible evidence that will not require cross examination or any other mode of authentication; e) The Gazette Notice was not available during trial or at the time of filing the appeal as it was published on 14th November 2025, four years after the ELC judgment; f) 8. The respondents will not be prejudiced by adduction of the additional evidence, but the applicants would be prejudiced by its exclusion. The 1st-4th and 6th-14th respondents filed joint grounds of opposition dated 3rd July 2026, stating that the applicants had failed to satisfy the legal threshold for admission of additional evidence on appeal. They contend that the evidence was not in existence during trial and was therefore irrelevant in the trial and consequent judgment, as it relates to events occurring after judgment. The respondents further contend that the proceedings before the National Land Commission were separate and distinct from those before the trial court. In addition, the respondents state that the proposed evidence raises new issues that were neither pleaded nor canvassed at trial. They maintain that introduction of the additional evidence would cause them prejudice, as they would be denied an opportunity to challenge it in cross examination. 9. On its part, the 15th respondent supports the application by a replying affidavit sworn by its Director of Strategic Litigation, Chris Kerkering. He depones that the applicants have met the conditions for admission of Page 9 of 12

page 9 of 21

additional evidence Page 10 of 12

page 10 of 21

on appeal pursuant to rule 31 of the Court of Appeal Rules. He states that the Gazette Notice, being the outcome of a determination of the applicants’ grievances by the 5th respondent, was relevant to the appeal before this Court as a first appellate court. 10. The 15th respondent agrees with the applicants that the Gazette Notice, having been published on 14 th November 2025, was not available during trial. The 15 th respondent adds that the Gazette Notice is credible and authentic prima facie, and requires no further proof. 11. The application came up for hearing before us on 7 th July 2026, with learned counsel Ms Mokku holding brief for Mr. Lempaa for the applicants. Learned counsel Mr. Kwame appeared for the 1st, 4th, 6th-14th respondents and Ms. Gathua represented the 15th respondent. Parties relied on their submissions as filed. In their submissions dated 6 th July 2026, the applicants invoke sections 3, 3A & 3B of the Appellate Jurisdiction Act and rule 31 of the Court of Appeal Rules. They also rely on the Supreme Court decision in Mahamud v Mohamad & 3 Others [2018] KESC 62 (KLR). They submit that the proposed additional evidence is directly relevant to the appeal, and that it clears doubts concerning the position of a first appellate court in addressing issues not determined by the trial court. The applicants aver that the trial court declined to adjudge their claim on historical land injustices, instead referring the matter to the National Land Commission, which also declined to make a determination on the grounds of res Page 11 of 12

page 11 of 21

judicata and sub judice. According to the Page 12 of 12

page 12 of 21

applicants, the additional evidence will assist this Court to conclusively determine the issue. 12. The applicants further submit that the proposed additional evidence will assist the Court to substantially determine the appeal and to issue appropriate relief. They rely on this Court’s decision in Archer & Another v Archer & 2 Others [2022] KECA 9 (KLR). 13. On credibility of the proposed evidence, the applicants submit that the Gazette Notice, being a public document issued by the government, enjoys presumption of authenticity and its admission would not require cross examination or any other subsequent form of verification. 14. The applicants maintain that the additional evidence is not intended to patch up or fill in gaps in the case. They assert that the substratum of the appeal remains the same, with the Gazette Notice merely drawing the attention of this Court to subsequent developments necessary in determination of the appeal. 15. The 1st-4th, 5th-14th respondents filed submissions dated 3rd July 2026, affirming their opposition to the application. They submit that the applicants have not met the criteria for admission of additional evidence as enunciated in Mahamud v Mohamad & 3 Others (supra). Wanje Further, relying on & Others v Sakwa & Others [1984] KLR 275, the 1st4th, 5th-14th respondents submit that the discretionary power to admit additional evidence ought to be exercised Page 13 of 12

page 13 of 21

sparingly, on demands of justice and such evidence should not be used to Page 14 of 12

page 14 of 21

patch up gaps in the case or fill in omissions in evidence adduced at trial. 16. These respondents assert that courts on appeal are confined to the record of proceedings before the trial court, adding that the proceedings before the National Land Commission were distinct, and having not been pleaded, canvassed or adjudicated upon at trial, they ought not to be considered on appeal. 17. It is argued that admission of the Gazette Notice would transform the appeal into an inquiry into matters that were not before the trial court. It is further urged that the respondents would be prejudiced by admission of the said evidence as the Gazette Notice contains factual assertions, findings and conclusions that were never subjected to scrutiny by way of cross examination of witnesses, challenging the evidentiary basis of the findings and presentation of evidence in rebuttal. 18. In support of the application, the 15th respondent filed its submissions dated 6th July 2026, maintaining that the threshold for admission of additional evidence under rule 31 of the Court of Appeal Rules had been met. Relying on the decision in Dorothy Nelima Wafula v Helen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR) the 15th respondent submits that a court exercising discretion to admit additional evidence on appeal is required to establish whether the proposed evidence would probably have had an important influence on the Page 15 of 12

page 15 of 21

outcome of the case, had it been available during trial. Page 16 of 12

page 16 of 21

19. We have considered the motion, the affidavits in support and the grounds of opposition as well as the submissions filed by the parties. The single issue for determination is whether the applicants have met the threshold for admission of additional evidence on appeal. The power of this Court to admit such evidence is donated by rule 31 of the Court of Appeal Rules which provides as follows: (1) On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power(a) to re-appraise the evidence and draw inferences of fact; and (b) in its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court. (2)When additional evidence is taken by the Court, the evidence may be taken orally or by affidavit and the Court may allow the cross- examination of any deponent. (3) When additional evidence is taken by the trial court, it shall certify such evidence to the Court, with a statement of its opinion on the credibility of the witness or witnesses giving the additional evidence. (4) When additional evidence is taken by a commissioner, the commissioner shall certify the evidence to the Court, without any such statements of opinion. (5) Each party to the appeal shall be entitled to be present when the additional evidence is taken. Page 17 of 12

page 17 of 21

20. By their motion, the applicants seek to introduce Special Issue Gazette Notice 6521 Vol CXXVII-No 230 of 14 th November 2025. The Gazette Notice contains the decision rendered by the National Land Commission regarding a complaint lodged by the Council of Elders of the Sengwer Community, concerning alleged historical land injustices against the Community. 21. The applicable principles in determining an application for adduction of additional evidence on appeal were outlined in the Supreme Court decision in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohammed & 3 Others (supra) as follows: a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice; b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; c) It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time the suit or petition was presented by the party seeking to adduce the additional evidence; d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; e) The evidence must be credible in the sense that it is capable of belief; Page 18 of 12

page 18 of 21

f) The additional evidence must not be so voluminous making it impossible for the other party to respond effectively; g) Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; h) Where the additional evidence discloses a strong prima facie case of willful deception of the court; i) The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful; j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case on appeal, fill up omissions or patch up the weak points in their case; k) The court will consider the proportionality and prejudice of allowing the additional evidence. 22. On the strength of the foregoing principles, we are satisfied that the Gazette Notice, which the applicants seek to introduce as additional evidence on appeal, meets the set criteria. First, the decision of the National Land Commission on alleged historical injustices affecting the Sengewer Community is a relevant piece of evidence, which was not available during the trial. Second, the Gazette Notice, being an official government publication, does not require further elaboration by way of cross examination, it speaks for itself Page 19 of 12

page 19 of 21

and is not voluminous. For avoidance of doubt, this Gazette Page 20 of 12

page 20 of 21

Notice shall be added to the record by way of a supplementary record and no further evidence shall be adduced orally or by affidavit as the document speaks for itself as already stated. 23. For the foregoing reasons, we will allow the application dated 21st May 2026 and admit Gazette Notice 6521 Vol CXXVII-No 230 of 14th November of 2025 as additional evidence. The parties are at liberty to file supplementary submissions on this additional evidence. 24. The costs of the application will abide the outcome of the appeal. Dated and delivered at Eldoret this 2nd day of October, 2026. M. GACHOKA C.Arb, FCIArb …………………….……………….. JUDGE OF APPEAL NDUMA NDERI …………………….………………. JUDGE OF APPEAL L.M. NDOLO …………………….…………….... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 21 of 12

page 21 of 21