Ongidi & another v Oduge & 14 others (Civil Appeal (Application) E056 of 2023) [2026] KECA 1077 (KLR)
The bottom line
#Kenya's Court of Appeal refused to hear new surveyor evidence on appeal because the landowners should have gathered it during the original trial.
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 applicants should be granted leave to adduce additional evidence (surveyor's evidence on acreage) on appeal before the Court
Key legal issues
#Whether the applicants satisfied the Mohamed Abdi Mahamud principles for admission of additional evidence on appeal
The application failed because the applicants did not explain why the surveyor's evidence could not have been obtained during the trial with reasonable diligence, and the evidence appeared aimed at curing weaknesses in the judgment below.
The Court applied the Mohamed Abdi Mahamud criteria and the Court of Appeal's jurisprudence in Dorothy Nelima Wafula and Peninah Nandako Kiliswa. It found the crucial limb of reasonable diligence unsatisfied: nothing showed the evidence of acreage could not have been procured before or during trial. It also observed the application created the perception of an attempt to patch up loopholes detected by the trial court, rather than fresh, relevant evidence warranting the exceptional exercise of discretion.
Legal principles established
#- The power to admit additional evidence on appeal must be exercised sparingly and with great caution, and an unsuccessful party may not use it to patch up the weak points in the case.
- A party seeking to adduce additional evidence must show that it could not have been obtained with reasonable diligence before and during the hearing, that it would probably have had an important influence on the result, and that it is credible.
Court orders
#- 1.The application dated 29th January 2025 seeking leave to adduce additional evidence is dismissed
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Petition No. E004 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under Rule 29 (now Rule 31) of the Court of Appeal Rules governing admission of additional evidence on appeal
Relief refused
#Leave to adduce additional evidence (surveyor's report on acreage of Kisumu/Wawidhi B/4158) orally, by affidavit, or before a commissioner
Applicants failed to show the evidence could not have been obtained with reasonable diligence during the trial; the application appeared to be an attempt to patch up weaknesses in the judgment below
Costs
Costs of the application to the 1st respondent
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.
The upshot is that the application lacks merit and is hereby dismissed with costs to the 1st respondent.
The perception created is that this is an attempt to patch up the loopholes detected by the trial court in the judgment.
the applicants have not explained why the said evidence could not be procured in time during hearing before the trial Court despite reasonable diligence
Issues in the judgment
#Internal inconsistency in the date of the judgment appealed against: paragraph 4 states it was delivered on 22nd February 2022, while paragraph 10 states 'The judgment being appealed was rendered on 22nd September, 2022.'
Apparent typographical errors in case references: 'KSM HCCCA No. 121 of 191' and reference to 'the 7th applicant' where '7th respondent' is meant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongidi & another v Oduge & 14 others (Civil Appeal (Application) E056 of 2023) [2026] KECA 1077 (KLR)", Case Analysis (2026). Not stated in the judgment (application arising from ELC Petition No. E004 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1077/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.