Oucho v Opiyo (Environment and Land Appeal 24 of 2021) [2022] KEELC 3919 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Statutory basis for admitting additional evidence on appeal
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
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.
Whether the appellant demonstrated due diligence regarding the timing of the new evidence
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
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.
Whether the alleged new evidence would have influenced the outcome
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
The appellant had withdrawn his suit, leaving only the counterclaim for return of documents.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.
Legal principles established
#- 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
#- 1.The application dated April 27, 2022 is dismissed with costs
- 2.Costs awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.