Thande (Suing as the legal representative of Francis Kiarie (Deceased) v Kahira & another (Civil Appeal (Application) E581 of 2021) [2023] KECA 1213 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a land dispute appellant to present long-sought 1969 Land Control Board minutes as new evidence, showing diligent effort can unlock fresh evidence on appeal.
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 applicant has made out a case for grant of leave to adduce additional evidence on appeal, applying the Mohamed Abdi Mahamud guidelines
Key legal issues
#Whether the applicant satisfied the Mohamed Abdi Mahamud criteria for admission of additional evidence on appeal
The application satisfied the criteria: the evidence was directly relevant to the main issue (whether Loise Wanjira signed/consented to the transfer), was not voluminous, was credible as an official public document, was obtained with reasonable diligence, and was not intended to fill gaps or make a fresh case.
The court traced the applicant's letters from October 2018 through May 2022 showing persistent efforts to obtain the 1969 Land Control Board minutes, which were only located after the December 7, 2020 judgment. The five-page document bore official stamps from the public office of origin. It served as rebuttal to the assertion of non-signature, removing vagueness on the transfer, and respondents would be able to respond and cross-examine at the appeal hearing.
Legal principles established
#- Admission of additional evidence on appeal is governed by the Mohamed Abdi Mahamud guidelines, which may be relaxed in exceptional circumstances on a case-by-case basis.
- Evidence originating from a public office and bearing an official stamp is presumed properly authenticated; the opposing party may impugn it at the hearing.
- Diligent but unsuccessful attempts to obtain evidence before the trial court satisfy the reasonable-diligence criterion even where the evidence is only availed after judgment.
Court orders
#- 1.Leave granted to the applicant to adduce and file additional evidence, being Dagoretti Divisional Land Control Board minutes of July 7, 1969
- 2.The applicant to, within 14 days, file and serve a supplementary record of appeal annexing the additional evidence
- 3.The respondent to file and serve a replying affidavit within 14 days of service of the supplementary record of appeal
- 4.The costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC)
- Not stated in the judgment
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution and rules 20, 21, 31(1)(b) and (2) & 49 of the Court of Appeal Rules
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.
Leave be and is hereby granted to the applicant to adduce and file additional evidence, being Dagoretti Divisional Land Control Board minutes of July 7, 1969.
It is evident that despite his diligence, the evidence in issue was only availed after judgment was delivered. What this implies is that it could not have been produced during the trial.
the additional document is aimed at removing any vagueness or doubt on the acquisition of the suit property. To this extent, it is relevant and has a direct bearing on the main issue for determination in the pending appeal.
the minutes are said to be from a public office. Consequently, their authentication should not be an issue.
The costs of the application shall abide the outcome of this appeal.
Issues in the judgment
#The judgment renders the same Supreme Court authority's name in two different spellings ('Mohamed Abdi Mohamed' and 'Mohamed Abdi Mahamud'), and the case number and neutral citation of this Court of Appeal application are not stated on the certified copy provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thande (Suing as the legal representative of Francis Kiarie (Deceased) v Kahira & another (Civil Appeal (Application) E581 of 2021) [2023] KECA 1213 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1213/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.