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ELCAllowedNot stated in the excerpt (ELC Appeal)· [2023] KEELC 352 (KLR)

Kanake v Karambu (Suing on Behalf of the Estate of James Meeme - Deceased) (Environment and Land Appeal 113 of 2021) [2023] KEELC 352 (KLR)

Environment and Land Court
25 January 2023
CNC.K. Nzili
2,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to introduce new official land records on appeal, showing courts will accept fresh evidence when trial documents were never properly verified.

What this practically means

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Executive summary

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This was a ruling in an Environment and Land Court appeal in which the appellant, Reuben Kinoti, sought leave to adduce additional evidence at the appellate stage. The appellant, registered owner of LR No Igembe/Ndoleli/Athiru Ruujine/3924, adjoining the respondent's husband's parcel 3925, contended that the registry index map presented by the land surveyor at trial had been altered and differed materially from the demarcation book and register, a fact confirmed by the District Land Adjudication & Settlement Officer's letter of February 16, 2022. The respondent opposed, arguing the trial court had relied on a county surveyor's report and scene visit never objected to, and that the parcels are now governed by the Land Registration Act. The court surveyed the governing framework - Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27-29 - and the case law, chiefly the Supreme Court's guidelines in Mohamed Abdi Mohamud, Wanjie vs Sakwa, Mount Elgon Beach Properties and EO vs COO. Observing that the makers of the trial maps never testified or authenticated them, the court found the proposed evidence direct, relevant, credible, non-voluminous and capable of influencing the appeal's outcome, and not obtainable with due diligence earlier. The application was allowed; the appellant was granted 14 days to file a supplementary record of appeal containing RKK '5', with the document makers to be available for cross-examination. Costs were made to abide by the appeal.

Key legal issues

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01

Whether leave to adduce additional evidence on appeal should be granted

Holding

Leave granted; the evidence (RKK '5', the DLASO letter and attachments) satisfies the Mohamed Abdi Mohamud guidelines and is admissible by way of supplementary record of appeal, with makers available for cross-examination.

Reasoning

The court applied the Supreme Court guidelines in Mohamed Abdi Mohamud: the evidence is directly relevant to the locality of the two parcels, credible as official public documents, not voluminous, and was unknown to the appellant until the DLASO's letter of February 16, 2022. The court noted the trial evidence of the county surveyor rested on unauthenticated maps whose makers never testified, so the new evidence would remove doubt as to the parcels' locality without prejudicing the respondent.

p. 4

Legal principles established

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  • Proposed additional evidence may be admitted on appeal where it is direct, relevant, credible, capable of influencing the outcome, not voluminous, and could not with due diligence have been obtained at trial.
  • Documents whose makers never testified or were not authenticated cannot found the basis of a dispute without more.

Court orders

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  1. 1.The application to adduce additional evidence is allowed
  2. 2.The appellant is granted leave to file and serve a supplementary record of appeal within 14 days including only the indicated RKK '5'
  3. 3.The makers of the two documents shall avail themselves for taking of their evidence and cross examination during the hearing of the appeal
  4. 4.Costs of the application to abide by the appeal
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules

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, "Kanake v Karambu (Suing on Behalf of the Estate of James Meeme - Deceased) (Environment and Land Appeal 113 of 2021) [2023] KEELC 352 (KLR)", Case Analysis (2023). Not stated in the excerpt (ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/352/eng@2023-01-25

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