Kenya Urban Roads Authority v Muambi Properties Ltd & 2 others

Properties Limited, Chief Land Registrar and the Hon. Attorney General, and of Machakos ELCC No. E031 of 2023, between Katheka Kai Farmers' Cooperative Society -vs- The Kenya Highway Authority and the Hon. Attorney General. e. That the costs of this application be borne by the appellant and respondents. 3. The motion is premised on the grounds therein and on the supporting adavit of Amos James Kimuli, sworn on 25 March 2025. Succinctly, the IP asserts ownership of L.R. No. 7374/3 (suit land), which was allegedly unlawfully acquired by the 1st respondent, with portions also ostensibly compulsorily acquired by the 2nd respondent, allegedly without proper verication of ownership. It informs the court that there are two ongoing cases over the suit land, one concerning ownership and another concerning trespass, to wit, ELCC No. 84 of 2019 and ELCC No. E031 of 2023. The IP states that if compensation is paid to the 1st respondent before these cases are resolved, the 1st respondent may suer irreversible loss. It is also alleged that the 1st respondent failed to disclose key information during the proceedings before the Land Acquisition Tribunal (LAT). Copies of these pleadings were provided to the court. 4. The 1st respondent opposes the motion by way of the replying adavit of Harrison Kikuvi Muambi, sworn on 14 May 2025, and, concisely, he makes several averments. The IP is not the registered owner of the disputed land, having sold it to the 1st respondent over 30 years ago, and cannot claim otherwise. The court lacks jurisdiction to halt the proceedings, as prior decisions have established the 1st respondent’s ownership. Staying the proceedings would increase costs to taxpayers due to accruing interest, and in any case, the 1st respondent has the means to refund any payments if necessary. The stay is also unwarranted because the IP has not challenged the tribunal proceedings and has been aware of and involved in related matters. Signicantly, some of the documents that are annexed to the supporting adavit are incomplete and/or illegible. 5. As for the appellant’s motion, it is stated to have been brought pursuant to the provisions of Orders 51 and 42 Rule 27 of the Civil Procedure Rules, Sections 3A and 78(1) of the Civil Procedure Act, and all other enabling provisions of the law, and it prays for the following orders: a. That leave be granted to the appellant to adduce additional documentary evidence on appeal. b. That this Honourable Court be and is hereby pleased to admit the additional documentary evidence identied in the appellant's supporting adavit. c. That the costs of this application be in the cause. 6. The motion is based on the grounds set out therein and on the supporting adavit of Patrick Kathiari Gitile, sworn on 24 June 2025. Several assertions are made, and, in summary, new evidence related to this case has come to light since the hearing and decision. The suit at the LAT included evidence showing that the 2nd respondent valued the suit land at Kshs. 52,632,888. However, a government valuation by the Ministry of Lands, Public Works, Housing and Urban Development on 7th May, 2025, found the market value as of 6th April, 2018, to be Kshs 5,900,000, with a compensation value of Kshs 6,800,000. 7. That there is a signicant dierence between the valuation submitted by the 1st respondent and that conducted by government valuers. Therefore, it is important to admit this additional evidence to protect public funds and taxpayers' money. To substantiate these statements, a valuation report dated 7 May 2025 was presented to the court; however, some portions were illegible. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 2

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8. The motion is challenged by the 1st respondent via the replying adavit of Harrison Kikuvi Muambi, sworn on 5 August 2025, where several averments are made and brief, the court cannot grant the prayers sought because previous orders in ELC 078 of 2021 referred the issue of acquisition and compensation of a portion of the suit land to the LAT, which has exclusive jurisdiction over compensation matters under the Land Value (Amendment) Act, 2019. The appellant has not explained why a new report presented in this application was not submitted to the LAT earlier. There are also misrepresentations in the appellant's documents. The appellant is aware that the dispute before the LAT concerned the compensation amount owed to the 1st respondent, yet no reason has been provided for why the valuation report it intends to submit in this appeal was not presented at the LAT. Moreover, the appellant accepted the valuation conducted by the 2nd respondent during the compulsory acquisition process, merely arguing that the amount exceeded its budget. 9. The motions are canvassed through written submissions led by various counsel acting for the parties, with Ms. Elizabeth Mwalozi, senior state counsel for the appellant, ling hers dated 25 December 2025, and the law rm of Ms. Kivuva Omuga & Co. Advocates for the 1st respondent ling composite submissions dated 30 January 2026 on both the applications and the substantive appeal. 10. Thus, having considered the motions, their grounds, adavits, annexures, and rival submissions, it is the considered view of this court that the issues that can adequately determine the motions are: a) whether the IP should be joined to these proceedings; b) whether there are adequate mechanisms within the Land Act that deal with the payment of compensation in instances of disputes; and c) whether the appellant has met the legal threshold to warrant the grant of leave to adduce additional evidence on appeal. These issues shall shortly be analysed and a determination rendered on them in a sequential manner. a. Whether the IP should be Joined to these Proceedings 11. Respecting the law on this issue, guidance is drawn from Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) which has mainly been interpreted to mean that the party who should be joined or added to civil proceedings-whether as a defendant, plainti, or interested party, whose presence in the proceedings is essential to assist the court in determining the matter eectively and comprehensivelyshould be included in the proceedings. This proviso states as follows: “ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 12. The Black’s Law Dictionary, 11th Edn, page 1351, denes an interested party in the following terms: “ A party who has a recognizable stake (and therefore standing) in a matter.” 13. The meaning of this denition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows: “ 3. An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 3

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interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.” 14. When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: “ 37. From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sucient grounds must be laid before the Court, on the basis of the following elements:The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identiable and must be proximate enough, to stand apart from anything that is merely peripheral.The prejudice to be suered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 15. In its reply adavit and submissions, the 1st respondent referred to one case, ELC 078 of 2021; nonetheless, it did not provide copies of the pleadings in that case or of any decisions that emanated therefrom, if any. 16. Turning to the IP, it submitted the plaint in Machakos ELC 94 of 2018, in which it has sued the 1st respondent, together with the Chief Land Registrar and the Oce of the Attorney General. By it, the IP contends that its former oce-bearers unlawfully, via a corrupt scheme, disposed of its properties without the consent and/or involvement of its members, and that one of these properties includes the suit land. This suit was led before the 1st respondent led the appeal before LAT; nevertheless, in paragraph 27 of its plaint before LAT, the 1st respondent disclosed only information regarding ELC 078 of 2021 and not Machakos ELC 94 of 2018. Given the existence of Machakos ELC 94 of 2018, in which the IPs challenge the validity of the title to the suit land, this court nds that the IP has a stake in these proceedings and would be prejudiced by any release of compensation to the 1st respondent. Therefore, it concludes that it is necessary to join the IP to these proceedings. b. Whether there are Adequate Mechanisms within the Land Act that Deal with the Payment of Compensation in Instances of Disputes 17. The parties in their submissions dwelt on a stay of proceedings pending appeal, which may be granted in exceptional circumstances as specied under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules and judicial precedents. However, they did not explore the statutory framework envisaged in Sections 115 (2) and (3) of the Land Act, which governs disputes concerning land subject to eminent domain. 18. This statutory provision stipulates that in cases such as the present, where multiple disputes exist over the suit land, including Machakos ELC No. 94 of 2018 and ELCC No. E031 of 2023, such https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 4

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compensation funds are expected to be deposited into a designated compensation account. This law explicitly provides that: “ (1) After notice of an award has been served on all the persons determined to be interested in the land, the Commission shall, promptly pay compensation in accordance with the award to the persons entitled thereunder, except in a case where—(a)there is no person competent to receive payment; or(b)the person entitled does not consent to receive the amount awarded; or(c)there is a dispute as to the right of the persons entitled to receive the compensation or as to the shares in which the compensation is to be paid.(2)In any of the cases referred to in paragraphs (a), (b) and (c) of subsection (1), the Commission may at any time pay the amount of the compensation into a special compensation account held by the Commission, notifying any persons interested accordingly.” 19. Flowing from this statute and as is settled, the provisions of the Civil Procedure Rules cannot supersede the clear stipulations of the Land Act. Hence, had the appellant and the 1st respondent taken into account this specic provision of the Land Act, the court is rmly convinced that their respective arguments on this issue would have been markedly dierent. 20. Further, contrary to the assertions of the 1st respondent, and in this court’s humble opinion, the fundamental purpose of the payment into the special compensation account is to ensure that no prejudice is suered by either the public or the eventual owner, as may be ultimately determined by a court in instances of disputes. See Kigotho & another v National Land Commission & another [2025] KEELC 7830 (KLR) and the Court of Appeal decision in Five Star Agencies Ltd & another v National Land Commission & 2 others [2024] KECA 439 (KLR). Consequently, this court nds that the appropriate order in this case would be to include in the nal judgment of this court an order for the deposit of the compensation funds in the special account pending the hearing and determination of the disputes over the suit land. c. Whether the Appellant has Met the Legal threshold to Warrant the Grant of Leave to Adduce Additional Evidence on Appeal. 21. The legal framework to entertain this relief, as correctly pointed out by the appellant on the face of the motion, is found in our Section 78 of the Civil Procedure Act and Order 42, Rules 27, 28 and 29 of the Civil Procedure Rules. These provisions of law empower this court to allow the introduction of new evidence on appeal, and they provide thus: Section 78 of the Civil Procedure Act: “ (1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case nally; b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 5

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Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules: 27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if— (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or (b) the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 6

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28. Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred. 29. Where additional evidence is directed or allowed to be taken the court to which the appeal is preferred shall specify the limits to which the evidence is to be conned and record on its proceedings the points so specied.” 22. However, leave to adduce additional evidence is not granted in every case; in the exercise of its judicial discretion, courts usually grant leave only in exceptional circumstances, with abundant caution and on a case-by-case basis. In Mahamud v Mohamad & 3 others [2018] KESC 62 (KLR), which has been relied upon by the appellant and 1st respondent, the Supreme Court of Kenya comprehensively and authoritatively set out the principles to be considered when determining whether an appellate court should admit additional evidence. 23. It must be noted that the principles outlined in Mohamed Abdi Mahamud (Supra) are not conjunctive. Nevertheless, an applicant, in this case the appellant, must meet the criteria substantially. The court set out the following guiding principles for an appellate court exercising its discretion to admit additional evidence: “ … in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya 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 inuence 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 of the suit or petition 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; (f) the additional evidence must not be so voluminous making it dicult or impossible for the other party to respond eectively; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 7

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(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 satised that the additional evidence is not utilized for the purpose of removing lacunae and lling gaps in evidence. The Court must nd 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 in appeal, ll up omissions or patch up the weak points in his/her case. (k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the signicance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 24. Regarding this matter, the court has duly taken time to evaluate and consider the valuation report obtained by the appellant subsequent to the judgment, which it intends to submit as additional evidence. The appellant has advanced two reasons for seeking to adduce additional evidence: rstly, a signicant discrepancy exists between the valuation led by the 1st respondent and the valuation carried out by government valuers from the Ministry of Lands, Public Works, Housing and Urban Development; secondly, the evidence in question was not within the possession of the appellant at the time of the hearing of the case. Therefore, this court will juxtapose these reasons against the guiding principles established in Mohamed Abdi Mahamud (Supra). 25. From the record, in paragraphs 9 (k) and 10 of the plaint dated 18 June 2024, the 1st respondent sought compensation of Kshs. 52, 632,888/-, being amounts derived from an award issued to it by the National Land Commission (NLC) on 14 August 2018 in respect of the compulsory acquisition of the suit land, which acquisition was later abandoned by a gazette notice. This report was produced as evidence. From the proceedings before LAT, particularly the attendance on 1 August 2024, the 1st respondent’s counsel submitted that the only issue before LAT was the compensable amount to the 1st respondent. 26. The appellant’s counsel did not contest this submission by the 1st respondent’s counsel. As a matter of fact, in paragraph 12 of its defence, the appellant stated that this award was extremely high, exceeding the prevailing market value for comparable land, beyond NLC’s budget, and higher than the cost of constructing the project. 27. Accordingly, it is sucient to state, with all due respect to the appellant, that the issue concerning the assessment of compensation for a portion of the suit land was well within the appellant’s knowledge during LAT’s proceedings. The appellant had the opportunity to procure and present before the LAT a valuation report demonstrating its perception of the land's value, particularly given that it argued the amount awarded to the 1st respondent was excessively high, among other grounds. As this constituted its defence. It could have been obtained through reasonable diligence. 28. Furthermore, contrary to the appellant’s arguments, this document was procured post judgment and during the subsistence of this appeal; consequently, it cannot be argued by the appellant that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 8

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the document existed but was not within its knowledge. Additionally, this court has taken into consideration the timing of the application, which was led signicantly long after the lodging of the appeal in relation to the grounds of appeal. It is evident to this court that the application was merely orchestrated to strengthen grounds (b), (c), and (d) of the memorandum of appeal. Therefore, this court nds that the appellant has not met the legal threshold to warrant the grant of leave to adduce additional evidence on appeal. 29. In light of the above reasons and ndings, the court hereby grants the following nal dispositive orders: - a. That Katheka Kai Farmers' Co-operative Society Limited is hereby joined as an interested party. b. That in its judgment, this court will issue appropriate orders concerning payments of the compensation and/or other payments into the special compensation account. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2026.RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM HON. A. Y. KOROSS JUDGE In the presence of; Ms. Kanja Court Assistant. Miss Mwalozi for appellant. Mr. Kivuva for 1st respondent. Mr. Mureithi for Mr. Nzaku for interested party. T https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5498/eng@2026-09-22 9

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