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ELCPartially AllowedNot stated in the judgment provided· [2021] KEELC 2870 (KLR)

Livingstone Were Mudondo v Mildred Athieno [2021] KEELC 2870 (KLR)

High Court of Kenya (Environment and Land Division)
18 May 2021
AOA. Omollo
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a self-represented appellant to introduce new documents on appeal because they were relevant, credible public records that would help the court reach a just decision.

What this practically means

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Executive summary

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The Appellant, acting in person, brought a Notice of Motion under a Certificate of Urgency seeking leave to file and rely on documents listed in the record of appeal dated 15/03/2021 (pages 55 to 80) that had not been filed in the lower court, so that they could be considered in the pending appeal. He contended that the Respondent had concealed material facts, that he had not been properly served or given time to extract the documents from court files, and that the lower court had refused him an opportunity to introduce them. The application was unopposed; only the Appellant filed submissions. The court considered section 78 of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, 2010, and the Supreme Court guidelines in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others (2018) eKLR on the admission of additional evidence on appeal. The documents sought included court orders, adjudication registers, land registers, a certificate of official search and pleadings in related succession and ELC suits - largely public documents likely in the Respondent's possession. The court noted the appellant never asked at trial to introduce the documents, but, being self-represented, may not have appreciated their weight, and no party would be prejudiced. Finding the documents relevant, credible, unchallenged as to authenticity and directly bearing on how the dispute arose, the court allowed the application in terms of prayer two (ii), with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether additional evidence not tendered before the trial court may be admitted on appeal

Holding

The application was allowed; the documents at pages 55 to 80 of the record of appeal were admitted as additional evidence.

Reasoning

The court applied section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, and the Supreme Court guidelines in Mohamed Abdi Mahamud. It found the documents were public documents, directly relevant to how the dispute arose, credible and unchallenged as to authenticity. The appellant, acting in person, was not legally trained and had not sought to introduce the documents at trial; no party would be prejudiced. Justice favoured their admission.

p. 3

Legal principles established

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  • The discretion to admit additional evidence on appeal must not be used to try a case afresh or to patch up gaps in a party's case.
  • Additional evidence may be admitted where it is relevant, credible, bears directly on the appeal, and assists the court to do justice.

Court orders

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  1. 1.Application allowed in terms of prayer two (ii): the court to accept and consider documents listed in the record of appeal dated 15/03/2021 from page 55 to page 80 not filed in the lower court
  2. 2.Costs of the application to abide the outcome of the appeal
Jurisdiction invoked
Section 78 of the Civil Procedure Act, 2010 and Order 42 Rule 27 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Livingstone Were Mudondo v Mildred Athieno [2021] KEELC 2870 (KLR)", Case Analysis (2021). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2870/eng@2021-05-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.