Oombo & another v Onyango (Administratrix of the Estate of John Onyango Amach) (Environment and Land Appeal E027 of 2022) [2024] KEELC 553 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed new evidence on appeal about a land sale agreement's validity, showing courts will admit decisive proof in the interest of justice.
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 are deserving of leave to introduce new evidence at appeal
- 2.Who should bear the costs of this application?
Key legal issues
#Whether leave should be granted to admit additional evidence on appeal
Leave granted; the replying affidavit did not displace the application and the Mohamed Abdi Mahamud criteria were satisfied
The court applied Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, 2010, together with the Supreme Court's guidelines in Mohamed Abdi Mahamud. The applicants sought to prove that a party to the agreement for sale was a minor without capacity to contract. The court found the evidence directly relevant, capable of influencing the appeal's outcome, and in the interest of justice. The respondent's contention that the trial turned on adverse possession did not displace the application.
Legal principles established
#- An appellate court may admit additional evidence where it is directly relevant, in the interest of justice, and would influence the outcome, per Section 78 of the Civil Procedure Act, Order 42 Rule 27 and the Mohamed Abdi Mahamud guidelines
Court orders
#- 1.The applicants' application dated 23rd November 2022 and filed on 2nd December 2022 is allowed, permitting the applicants to introduce additional evidence on appeal
- 2.Costs of the application to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (Environment and Land Court, Homa Bay)
- Jurisdiction invoked
- Appellate powers under Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 42 Rule 27 of the Civil Procedure Rules, 2010
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.
It is therefore, my considered view that the additional evidence is directly relevant to the instant appeal and is in the interest of justice. That the same will infiuence the outcome of the present appeal.
To that end, I find the applicants’ application dated 23rd November 2022 and filed herein on 2nd December 2022 merited. The same is hereby allowed.
Costs of the application to abide the appeal.
Issues in the judgment
#The application is described as dated 26th September 2023 in the opening paragraph, but the ruling order refers to it as dated 23rd November 2022 and filed on 2nd December 2022
Paragraph 5 refers to submissions dated 7th February 2023, while the replying affidavit and submissions are dated November 2023, suggesting a date inconsistency in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oombo & another v Onyango (Administratrix of the Estate of John Onyango Amach) (Environment and Land Appeal E027 of 2022) [2024] KEELC 553 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal from Homa Bay High Court Misc Application No. 45 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/553/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.