Onchiri & 490 others v Omami & 11 others (Civil Application E081 of 2022) [2025] KECA 767 (KLR)
The bottom line
#Kenya's Court of Appeal refused to accept new ownership evidence on appeal because the applicants could have obtained it from the public Land Registry before trial.
What this practically means
#Executive summary
#Key legal issues
#Due diligence requirement for admission of further evidence on appeal
The applicants totally failed to demonstrate that searches and titles could not have been obtained by due diligence before trial.
The applicants claimed ownership of 13 properties in their petition, and the respondents disputed that ownership, so it was obvious to diligent litigants to conduct searches on the titles. The Land Registry is a public office accessible to anyone. The applicants placed no evidence of any efforts to search before trial; they only conducted searches after losing their case. Their failure satisfies the court that the due diligence limb of the additional-evidence test is not met.
Relevance and impact of the proposed further evidence on the appeal's outcome
The proposed searches and titles are not directly relevant to the central question and would not influence the outcome, because they contradict rather than support the applicants' ownership claim.
Even if admitted, the documents do not assist the applicants: they do not prove their pleaded claim to ownership. On the contrary, the searches and titles tend to establish the respondents' claim that they are the registered proprietors. Evidence that undermines rather than advances the applicant's own case cannot influence the verdict in their favour and fails the Mohamed Abdi Mohamud relevance and impact criteria.
Rule 31(1)(b) is not a vehicle for patching up a failed case
The power to admit additional evidence must be exercised sparingly and not to enable an unsuccessful party to make a fresh case on appeal.
Relying on Wanje v. Saikwa and Mohamed Abdi Mohamud, the court reaffirmed that rule 31(1)(b) does not authorise admission of evidence to remove lacunae, fill gaps or patch up weak points. There would be no end to litigation if parties could improve their cases by calling further evidence on appeal. The applicants, having lost at trial, were attempting to introduce searches they ought to have obtained before trial, a classic impermissible use of the rule.
Legal principles established
#- An appellate court will only admit additional evidence where the applicant shows the evidence could not have been obtained with reasonable diligence before trial, and it is directly relevant and capable of influencing the outcome of the appeal.
- Land registry searches are publicly accessible, so a party claiming ownership of registered land is expected, as a diligent litigant, to conduct and produce searches before trial; failure to do so disqualifies the admission of those searches as further evidence on appeal.
Court orders
#- 1.The motion dated 12th March 2024 seeking leave to adduce further evidence is dismissed
- 2.Costs of the application awarded to the 3rd, 4th and 5th respondents
- On appeal from
- Environment and Land Court at Nairobi
- Petition filed on or about 26th June 2010 (number not stated)
- Jurisdiction invoked
- Rule 31(1)(b) of the Court of Appeal Rules, 2022; Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act (as referenced in the rule's rationale)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onchiri & 490 others v Omami & 11 others (Civil Application E081 of 2022) [2025] KECA 767 (KLR)", Case Analysis (2025). Not stated in the judgment (motion on notice dated 12th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/767/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.