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ELCAllowedNot stated in the judgment (appeal from Homa Bay High Court Misc Application No. 45 of 2019)

Oombo & another v Onyango (Administratrix of the Estate of John Onyango Amach) (Environment and Land Appeal E027 of 2022) [2024] KEELC 553 (KLR)

Environment and Land Court
6 February 2024
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By an amended Notice of Motion dated 26th September 2023, the applicants sought leave to introduce a bundle from Homa Bay High Court Misc Application No. 45 of 2019 as additional evidence in their appeal against a trial court judgment, contending that the agreement for sale of land relied on at trial was illegal because one party was a minor without capacity to contract. The respondent opposed, describing the application as frivolous, vexatious, an abuse of process and an afterthought, arguing that the trial was decided on adverse possession so the agreement's validity was inconsequential, and relying on the Mohamed Abdi Mahamud decision. The court identified two issues: whether leave to introduce new evidence on appeal was deserved, and costs. Applying Section 78 of the Civil Procedure Act, Order 42 Rule 27 of the Civil Procedure Rules, 2010, and the Supreme Court's guidelines in Mohamed Abdi Mahamud, the court found that the replying affidavit did not displace the application, that the additional evidence was directly relevant, would influence the appeal's outcome, and was in the interest of justice. The application was allowed with costs abiding the appeal. Judgment delivered at Homa Bay on 6th February 2024 by G.M.A Ongondo, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants are deserving of leave to introduce new evidence at appeal
  2. 2.Who should bear the costs of this application?

Key legal issues

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01

Whether leave should be granted to admit additional evidence on appeal

Holding

Leave granted; the replying affidavit did not displace the application and the Mohamed Abdi Mahamud criteria were satisfied

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 4Criteria for admission of additional evidence on 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.
p. 4Final orders - application allowed
Costs of the application to abide the appeal.
p. 4Costs order

Issues in the judgment

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material

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

minor

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

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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, "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.