REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BOMET
ELCL APPEAL NO. E003 OF 2026
(Formerly Kericho ELC No. E020 of 2025)
DAVID CHERUIYOT ………..……………..… APPELLANT/APPLICANT
V E R S U S
PHILIP KIPLANGAT TOWETT ……………………….. 1 ST RESPONDENT
WILTER CHEPNGENO ……………………………..… 2 ND RESPONDENT
(Being an Appeal from the decision (Judgment) of Hon. B. KIMTAI, SPM, Sotik Law Courts in SOTIK MCELC Suit No. E003 of 2021 delivered on 5 th August, 2025)
BETWEEN
PHILIP KIPLANGAT TOWETT ……………………..……… 1 ST PLAINTIFF
WILTER CHEPNGENO …………………………………….. 2 ND PLAINTIFF
VERSUS
DAVID CHERUIYOT ………………………………….…….. DEFENDANT
R U L I N G
Introduction
1. This Ruling is in respect of the Notice of Motion Application dated 11 th May, 2026, filed on behalf of the Appellant and expressed to be brought pursuant to the Provisions of sections 1A, 1B, 3, 3A & 78 of the Civil Procedure Act, Order 42 Rule 27 & Order 51 Rule 1 of the Civil Procedure Rules and Article 150 of the Constitution of Kenya 2010.
2. The Application seeks orders that;
(a) The Honourable Court be pleased to grant and allow the Appellant/Applicant leave to adduce additional evidence in the Appeal.
(b) Upon leave being granted, the Court do allow the documents being adduced to be filed as Supplementary Record of Appeal.
(c) The Court be pleased to give further orders and directions as it may deem fit and just
(d) The costs of the Application be provided
3. The Application was supported by the averments in the Supporting Affidavit sworn by David Cheruiyot on 11 th May, 2026 and the annexures thereto.
4. The Application was opposed vide the averments in the Replying Affidavit sworn by Philip Kiplangat Towett, the 1 st Respondent, on 5 th June, 2026, on his own behalf and on behalf of the 2 nd Respondent.
5. Directions were given on 25.5.2026 that the Application be heard by way of written submissions. Consequently, written submissions dated 8 th July, 2026 were filed by Yegon, Sang Associates on behalf of the Applicant, while written submissions dated 7 th July, 2026 were filed on behalf of the Respondents by Koech Gideon Advocate.
The Case of the Applicant
6. The case of the Applicant is that new and vital documents relevant to the matter before the court were retrieved after the judgment appealed against herein had been delivered. That the new evidence, if given, would influence or impact upon the result or verdict of the Appeal and that it is in the interest of justice to admit the new evidence to avert a miscarriage of justice. That the new evidence could not have been obtained with reasonable diligence for use at the trial, that the new evidence casts doubts on the evidence relied upon by the trial court in arriving at the impugned judgment, and that the new evidence is credible, crucial and demonstrates compelling probative value in the appeal. That no prejudice shall be visited upon the respondent and that instead, justice shall win.
The Case of the Respondents :
7. The case of the Respondents, as can be gathered from the Replying Affidavit, is that the Application is misconceived, premature, legally untenable and an abuse of the Court process and ought to be dismissed. That the Applicant has failed to satisfy the conditions for the admission of additional evidence on appeal. That if the additional evidence is admitted, the Respondent shall be irreparably prejudiced as they shall be denied the opportunity to cross-examine any witness who may be called in relation to the additional evidence, that the Respondents shall have no meaningful opportunity to test or interrogate the authenticity and probative value of the proposed new evidence and that the Respondents’ right to equality of arms in litigation shall be compromised.
8. That the additional evidence would undermine the provisions of Articles 10(1) & (2), 20(1), 50(1), 50(4) and 159(2)(e) of the Constitution. That the documents that the Applicant now seeks to introduce were never raised, pleaded or adjudicated before the trial Court and that this Court has no mandate to act as a Court of first instance.
Analysis and determination
9. The Application is anchored, inter alia, on Section 78 of the Civil Procedure Act. Section 78 provides for the powers of an Appellate Court as follows;
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:-
a) to determine a case finally;
b) to remand a case;
c) to frame issues and refer the case for trial
d) to take additional evidence or to require the evidence to be taken
e) to order a new trial
(2) Subject as aforesaid, the Appellate Court shall have the same power and shall perform as nearly as may be, the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suit instituted therein.
10. Order 42 Rule 27 provides for production of additional evidence in an appellate court as follows;
(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
(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 reasons for its admission.
11. From these provisions of the law, it is clear that admission/ production of additional evidence on appeal is not a matter of right or a matter of course but one that requires the Applicant to satisfy certain conditions first. These conditions include;
a) Where the trial Court refused to admit production of the evidence
b) Where the Appellate Court requires the evidence to enable it to pronounce the judgment
c) Any other substantial case law has elaborated on any other substantial cause
12. It was submitted on behalf of the Appellant/Applicant that the application meets the requisite threshold for leave to adduce new and additional evidence set out in the case of Mohamed Abdi Mohamed =VS= Ahmed Abdullahi Mohammed & 3 Others (2018) eKLR. That the additional evidence would be of great assistance to the court towards determining the credibility and integrity of the documents relied upon by the parties. That the Constitution of Kenya 2010 provided in Article 159 that Courts must at all times do substantive justice without undue regard to procedural technicalities. Counsel urged the Court to allow the Application and award costs thereof to the Applicant.
13. On behalf of the Respondents, it was submitted that the power of an Appellate Court to admit production of additional evidence is discretionary. Referring to the case of Mohammed Abdi Mohammed (Supra), also cited by the Applicant, Counsel submitted that the three-fold threshold laid down in the case for admission of additional evidence is that;
(a) It must be shown that the evidence could not have been obtained with reasonable diligence for us at the trial,
(b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive,
(c) The evidence must be apparently credible, though it need not be incontrovertible.
14. Counsel also relied on the case of Wanje & Others =VS= Saikiva & Others (1984) KLR 275 and Ringi =VS= Seif & another Civil Appeal No. 44 of 2016 (2019) eKLR, where it was held that additional evidence that comes into existence subsequent to the impugned judgment and order cannot be admitted. And submitted further. That allowing the Application would be to defeat the purpose of appeal, which is to determine whether the trial court arrived at a proper decision based on the evidence before it. Counsel urged the Court to dismiss the Application with costs.
15. According to the averment in paragraph 3 of the Supporting Affidavit, the additional evidence sought to be admitted in this appeal is contained in the bundle marked “DC2” and attached to the Supporting Affidavit. Perusal of that bundle shows that it contains many documents, including copies of Certificate of Lease for Kericho/Sotik Township/402 dated 21 st June, 1996, Transfer of land form, Stamp Duty Declaration Assessment and Pay-in-ship, Transfer of Lease Document dated 20 th September, 2006, copy of Register (Green Card) for Kericho/Sotik Township/402, KRA PIN for the 1 st Respondent, copy of National Identity Card for Simon Kiprono Siele, KRA PIN for Siele Simion Kiprono, payment receipt, Certificate of Lease for the suit land in favour of Philip Kiplangat Towett and David Kiprono Cheruiyot dated 22 nd September, 2006, various pays of the presentation book.
16. A reading of the Record of Appeal shows that the Appellant was the Defendant and Counter Claimant in the suit and that the cause of action revolved around ownership of the suit land.
17. The documents in the bundle marked as “DC2” listed hereinabove are documents that a party in a suit centered on ownership of land would ordinary strife to avail as evidence at the trial.
18. I have carefully read the Supporting Affidavit, and I find no evidence or claim that the Applicant ever made any effort to procure the said documents for the trial. Most, if not all, of the listed documents are documents that emanate from the Land Registry. There is no claim that the Applicant requested for the said documents from the Land Registry to no avail or sought the assistance of the trial Court or other lawful means to obtain the documents for use at the trial to no avail. There is no evidence that the trial Court refused to admit the evidence sought to be admitted. In the circumstances cannot be said that the proposed additional evidence was evidence that could not be accessed with reasonable diligence to be used at the trial.
19. The record shows that the Applicant tabled before the trial court what he considered to be sufficient evidence to prove his claim. He filed a list and bundle of documents dated 22 nd July, 2022 (See page 121 of the Record of Appeal). He produced his documents and closed his case on 11 th July 2025.
20. This Court has not required any of the documents sought to be produced as additional evidence so as to be able to pronounce judgment in this Appeal.
21. As held in Wanje & Others =VS= Saikwa & Others (1984) KLR 275, the rule for admission of additional evidence on appeal is not intended to enable a party who had discovered fresh evidence to import it, nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points of his case and fill up omissions before the Appellate Court.
22. The power conferred by Section 78 of the Civil Procedure Act and Order 42 Rule 87 upon an appellate court is discretionary and as such must be exercised judiciously to do justice for deserving cases. I am not persuaded that the Application herein demonstrates such a case.
23. I find that the Application lacks merit with the result that
i. The Application is dismissed.
ii. As the Appeal is yet to be heard and disposed of, costs of the Application shall abide the Appeal.
Ruling dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
HON. E. ASATI,
JUDGE.
BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING 10101010
IN THE ENVIRONMENT AND LAND COURT AT BOMET
ELCL APPEAL NO. E003 OF 2026
(Formerly Kericho ELC No. E020 of 2025)
DAVID CHERUIYOT ………..……………..… APPELLANT/APPLICANT
V E R S U S
PHILIP KIPLANGAT TOWETT ……………………….. 1 ST RESPONDENT
WILTER CHEPNGENO ……………………………..… 2 ND RESPONDENT
(Being an Appeal from the decision (Judgment) of Hon. B. KIMTAI, SPM, Sotik Law Courts in SOTIK MCELC Suit No. E003 of 2021 delivered on 5 th August, 2025)
BETWEEN
PHILIP KIPLANGAT TOWETT ……………………..……… 1 ST PLAINTIFF
WILTER CHEPNGENO …………………………………….. 2 ND PLAINTIFF
VERSUS
DAVID CHERUIYOT ………………………………….…….. DEFENDANT
R U L I N G
Introduction
1. This Ruling is in respect of the Notice of Motion Application dated 11 th May, 2026, filed on behalf of the Appellant and expressed to be brought pursuant to the Provisions of sections 1A, 1B, 3, 3A & 78 of the Civil Procedure Act, Order 42 Rule 27 & Order 51 Rule 1 of the Civil Procedure Rules and Article 150 of the Constitution of Kenya 2010.
2. The Application seeks orders that;
(a) The Honourable Court be pleased to grant and allow the Appellant/Applicant leave to adduce additional evidence in the Appeal.
(b) Upon leave being granted, the Court do allow the documents being adduced to be filed as Supplementary Record of Appeal.
(c) The Court be pleased to give further orders and directions as it may deem fit and just
(d) The costs of the Application be provided
3. The Application was supported by the averments in the Supporting Affidavit sworn by David Cheruiyot on 11 th May, 2026 and the annexures thereto.
4. The Application was opposed vide the averments in the Replying Affidavit sworn by Philip Kiplangat Towett, the 1 st Respondent, on 5 th June, 2026, on his own behalf and on behalf of the 2 nd Respondent.
5. Directions were given on 25.5.2026 that the Application be heard by way of written submissions. Consequently, written submissions dated 8 th July, 2026 were filed by Yegon, Sang Associates on behalf of the Applicant, while written submissions dated 7 th July, 2026 were filed on behalf of the Respondents by Koech Gideon Advocate.
The Case of the Applicant
6. The case of the Applicant is that new and vital documents relevant to the matter before the court were retrieved after the judgment appealed against herein had been delivered. That the new evidence, if given, would influence or impact upon the result or verdict of the Appeal and that it is in the interest of justice to admit the new evidence to avert a miscarriage of justice. That the new evidence could not have been obtained with reasonable diligence for use at the trial, that the new evidence casts doubts on the evidence relied upon by the trial court in arriving at the impugned judgment, and that the new evidence is credible, crucial and demonstrates compelling probative value in the appeal. That no prejudice shall be visited upon the respondent and that instead, justice shall win.
The Case of the Respondents :
7. The case of the Respondents, as can be gathered from the Replying Affidavit, is that the Application is misconceived, premature, legally untenable and an abuse of the Court process and ought to be dismissed. That the Applicant has failed to satisfy the conditions for the admission of additional evidence on appeal. That if the additional evidence is admitted, the Respondent shall be irreparably prejudiced as they shall be denied the opportunity to cross-examine any witness who may be called in relation to the additional evidence, that the Respondents shall have no meaningful opportunity to test or interrogate the authenticity and probative value of the proposed new evidence and that the Respondents’ right to equality of arms in litigation shall be compromised.
8. That the additional evidence would undermine the provisions of Articles 10(1) & (2), 20(1), 50(1), 50(4) and 159(2)(e) of the Constitution. That the documents that the Applicant now seeks to introduce were never raised, pleaded or adjudicated before the trial Court and that this Court has no mandate to act as a Court of first instance.
Analysis and determination
9. The Application is anchored, inter alia, on Section 78 of the Civil Procedure Act. Section 78 provides for the powers of an Appellate Court as follows;
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:-
a) to determine a case finally;
b) to remand a case;
c) to frame issues and refer the case for trial
d) to take additional evidence or to require the evidence to be taken
e) to order a new trial
(2) Subject as aforesaid, the Appellate Court shall have the same power and shall perform as nearly as may be, the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suit instituted therein.
10. Order 42 Rule 27 provides for production of additional evidence in an appellate court as follows;
(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
(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 reasons for its admission.
11. From these provisions of the law, it is clear that admission/ production of additional evidence on appeal is not a matter of right or a matter of course but one that requires the Applicant to satisfy certain conditions first. These conditions include;
a) Where the trial Court refused to admit production of the evidence
b) Where the Appellate Court requires the evidence to enable it to pronounce the judgment
c) Any other substantial case law has elaborated on any other substantial cause
12. It was submitted on behalf of the Appellant/Applicant that the application meets the requisite threshold for leave to adduce new and additional evidence set out in the case of Mohamed Abdi Mohamed =VS= Ahmed Abdullahi Mohammed & 3 Others (2018) eKLR. That the additional evidence would be of great assistance to the court towards determining the credibility and integrity of the documents relied upon by the parties. That the Constitution of Kenya 2010 provided in Article 159 that Courts must at all times do substantive justice without undue regard to procedural technicalities. Counsel urged the Court to allow the Application and award costs thereof to the Applicant.
13. On behalf of the Respondents, it was submitted that the power of an Appellate Court to admit production of additional evidence is discretionary. Referring to the case of Mohammed Abdi Mohammed (Supra), also cited by the Applicant, Counsel submitted that the three-fold threshold laid down in the case for admission of additional evidence is that;
(a) It must be shown that the evidence could not have been obtained with reasonable diligence for us at the trial,
(b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive,
(c) The evidence must be apparently credible, though it need not be incontrovertible.
14. Counsel also relied on the case of Wanje & Others =VS= Saikiva & Others (1984) KLR 275 and Ringi =VS= Seif & another Civil Appeal No. 44 of 2016 (2019) eKLR, where it was held that additional evidence that comes into existence subsequent to the impugned judgment and order cannot be admitted. And submitted further. That allowing the Application would be to defeat the purpose of appeal, which is to determine whether the trial court arrived at a proper decision based on the evidence before it. Counsel urged the Court to dismiss the Application with costs.
15. According to the averment in paragraph 3 of the Supporting Affidavit, the additional evidence sought to be admitted in this appeal is contained in the bundle marked “DC2” and attached to the Supporting Affidavit. Perusal of that bundle shows that it contains many documents, including copies of Certificate of Lease for Kericho/Sotik Township/402 dated 21 st June, 1996, Transfer of land form, Stamp Duty Declaration Assessment and Pay-in-ship, Transfer of Lease Document dated 20 th September, 2006, copy of Register (Green Card) for Kericho/Sotik Township/402, KRA PIN for the 1 st Respondent, copy of National Identity Card for Simon Kiprono Siele, KRA PIN for Siele Simion Kiprono, payment receipt, Certificate of Lease for the suit land in favour of Philip Kiplangat Towett and David Kiprono Cheruiyot dated 22 nd September, 2006, various pays of the presentation book.
16. A reading of the Record of Appeal shows that the Appellant was the Defendant and Counter Claimant in the suit and that the cause of action revolved around ownership of the suit land.
17. The documents in the bundle marked as “DC2” listed hereinabove are documents that a party in a suit centered on ownership of land would ordinary strife to avail as evidence at the trial.
18. I have carefully read the Supporting Affidavit, and I find no evidence or claim that the Applicant ever made any effort to procure the said documents for the trial. Most, if not all, of the listed documents are documents that emanate from the Land Registry. There is no claim that the Applicant requested for the said documents from the Land Registry to no avail or sought the assistance of the trial Court or other lawful means to obtain the documents for use at the trial to no avail. There is no evidence that the trial Court refused to admit the evidence sought to be admitted. In the circumstances cannot be said that the proposed additional evidence was evidence that could not be accessed with reasonable diligence to be used at the trial.
19. The record shows that the Applicant tabled before the trial court what he considered to be sufficient evidence to prove his claim. He filed a list and bundle of documents dated 22 nd July, 2022 (See page 121 of the Record of Appeal). He produced his documents and closed his case on 11 th July 2025.
20. This Court has not required any of the documents sought to be produced as additional evidence so as to be able to pronounce judgment in this Appeal.
21. As held in Wanje & Others =VS= Saikwa & Others (1984) KLR 275, the rule for admission of additional evidence on appeal is not intended to enable a party who had discovered fresh evidence to import it, nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points of his case and fill up omissions before the Appellate Court.
22. The power conferred by Section 78 of the Civil Procedure Act and Order 42 Rule 87 upon an appellate court is discretionary and as such must be exercised judiciously to do justice for deserving cases. I am not persuaded that the Application herein demonstrates such a case.
23. I find that the Application lacks merit with the result that
i. The Application is dismissed.
ii. As the Appeal is yet to be heard and disposed of, costs of the Application shall abide the Appeal.
Ruling dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
HON. E. ASATI,
JUDGE.
BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING BOMET ELC ELCA NO. E003 OF 2026 – RULING 10101010