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ELCDismissedEnvironment and Land Appeal 24 of 2021· [2022] KEELC 3919 (KLR)

Oucho v Opiyo (Environment and Land Appeal 24 of 2021) [2022] KEELC 3919 (KLR)

Environment and Land Court
13 July 2022
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to hear new evidence on appeal because the applicant couldn't show when he discovered it or how it would change the case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Munyao Sila J) on an application by the appellant, dated April 27, 2022, seeking leave to adduce new and compelling evidence on appeal. The appeal challenged the judgment of the magistrate's court at Mombasa (CMCC No. 2921 of 2009, delivered March 26, 2021), in which the appellant had withdrawn his suit claiming purchase of a plot, leaving the respondent's counterclaim, which succeeded uncontroverted: the court ordered return of the respondent's land ownership documents held by the appellant as loan security and awarded Kshs 500,000 in damages. The purported new evidence was an alleged sale of the suit land by the respondent to a third party, Athman Omar Korsen, on June 21, 2010, attested to by one Stephen Ochieng Otieno. The court identified section 78(1)(d) of the Civil Procedure Act as the operative provision and adopted the Court of Appeal principles under Rule 29(1)(b): that the evidence could not have been obtained with reasonable diligence, would probably have influenced the result, and is credible. The court found the appellant failed to state when the evidence came to his knowledge, doubted his claim of ignorance since a third-party claimant had been mentioned during trial in 2016, and held the evidence could not have influenced the counterclaim since even a sale would not justify retaining the respondent's documents. The application was dismissed with costs.

Key legal issues

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01

Statutory basis for admitting additional evidence on appeal

Holding

Section 78(1)(d) of the Civil Procedure Act empowers an appellate court to take additional evidence, and courts borrow the principles developed under Rule 29(1)(b) of the Court of Appeal Rules

Reasoning

The court noted that sections 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 do not specifically address adducing evidence on appeal. The specific provision is section 78(1)(d). Since that section prescribes no principles, the court adopted the guidelines developed by the Court of Appeal under Rule 29(1)(b) of the Court of Appeal Rules.

p. 3
02

Whether the appellant demonstrated due diligence regarding the timing of the new evidence

Holding

The application failed because the appellant did not state when the purported new evidence came to his knowledge, making it impossible to assess diligence and delay

Reasoning

The supporting affidavit only said the evidence came up 'just recently after the appeal had been scheduled for judgment.' The court found this insufficient. Moreover, on February 3, 2016 the appellant's counsel had mentioned in the trial court that a third party claiming to have purchased the land had emerged, so the court disbelieved the claim that the evidence was new.

p. 5
03

Whether the alleged new evidence would have influenced the outcome

Holding

The evidence would not have influenced the judgment because even if the land had been sold, that would not entitle the appellant to retain the respondent's ownership documents

Reasoning

The appellant had withdrawn his suit, leaving only the counterclaim for return of documents. The court reasoned that even assuming the respondent sold the land, the appellant had no basis to keep the ownership documents; if anything, the documents ought to be returned so they could be handed to any new purchaser. The appellant thus failed the second test.

p. 5

Legal principles established

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  • Before permitting additional evidence on appeal it must be shown that the evidence could not have been obtained by reasonable diligence before and during the hearing, that it would probably have had an important influence on the result, and that it is credible though not incontrovertible
  • An application to adduce additional evidence on appeal must be made timeously and promptly; unreasonable delay affects the court's discretion
  • The power to admit additional evidence on appeal must be exercised sparingly and is not for patching up weak points in a case

Court orders

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  1. 1.The application dated April 27, 2022 is dismissed with costs
  2. 2.Costs awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Actsection 78(1)(d)
  • Civil Procedure RulesOrder 51 Rule 1
  • Court of Appeal RulesRule 29(1)(b)

Cases cited (5)

  • EO vs COO
    (2020) eKLR
  • Dorothy Nelima Wafula vs Hellen Nekesa Nielsen & Another
    (2017) eKLR
  • Mzee Wanje & 93 Others V A K Saikwa
    (1982-88) 1 KAR 462
  • Joginder Auto Service Ltd V Mohammed Shaffique
    Civil Appeal (Application) no Nai 210 of 2000
  • Karmali Tarmohamed & Ano V I H Lakhani
    (1958) EA 567
On appeal from
Magistrate's Court, Mombasa
CMCC No. 2921 of 2009
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act (power of appellate court to take additional evidence)

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, "Oucho v Opiyo (Environment and Land Appeal 24 of 2021) [2022] KEELC 3919 (KLR)", Case Analysis (2022). Environment and Land Appeal 24 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3919/eng@2022-07-13

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