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ELCDismissedNot stated in the extracted judgment (notice of motion dated 3/07/2023)· [2024] KEELC 1054 (KLR)

Stephen (Suing as the administrator and representative of the estate of Oure Omolo Ogalo) v Omuko & 2 others (All sued as representatives of the Estate of Oluoch Ojuko and in their respective personal capacities) (Environment and Land Appeal E006 of 2023) [2024] KEELC 1054 (KLR)

High Court of Kenya
29 February 2024
AKA. Y. Koross
1,869 words in judgment
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The bottom line

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A Kenyan High Court refused to let an appellant add new photos as evidence on appeal because he could have used them at trial.

What this practically means

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Executive summary

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This is a ruling by the High Court at Siaya (Koross, J) on a notice of motion dated 3/07/2023 by the appellant, George Omollo Stephen, in an appeal from a lower court adverse possession suit over parcel North Sakwa/Maranda/1436. The motion, brought under Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, sought leave to file additional evidence on appeal - a bundle of photographs of structures and crops on the suit property. The appellant explained the omission by his inadvertence and hostilities following a meeting convened by the chief of West Sakwa on 14/11/2019, and contended the evidence was pertinent, credible, would influence the outcome and would not prejudice the respondents. The motion was unopposed and canvassed by written submissions relying on the Supreme Court's decision in Mohamed Abdi Mahamud and Attorney General v Torino Enterprises Limited. The court framed a single issue: whether leave to adduce additional evidence should be granted. Applying the Mohamed Abdi Mahamud principles, the court held they are not conjunctive but must be substantially met. It found the photographs directly relevant but obtainable with reasonable diligence at trial, since occupancy was a central issue throughout the trial and the appellant, an alleged occupier, had knowledge of activities on the land. The court also found, contrary to counsel's assertion, the suit was defended and the 1st respondent adduced evidence; and the chief's meeting was unproven, the surveyor's boundary report not being produced. Concluding the application was an attempt to make a fresh case on appeal and patch up weak points, the court dismissed the motion with the appellant bearing his own costs, and directed a mention for directions on the main appeal on 10/04/2024.

Key legal issues

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Whether the appellant should be granted leave to adduce additional evidence on appeal

Holding

The application fails; the appellant was the author of his own misfortune for not producing the photographs at trial and seeks to make a fresh case on appeal

Reasoning

The appeal was from an adverse possession claim in which occupancy of the suit land was a live issue throughout trial, so the photographs could have been obtained with due diligence and were within the appellant's knowledge. The alleged chief's meeting was not substantiated; a surveyor's boundary dispute exercise under Sections 18 and 19 of the Land Registration Act existed but its report was not produced. As an unsuccessful party, the appellant is attempting to fill omissions and patch weak points, which the Mohamed Abdi Mahamud principles forbid.

p. 5

Legal principles established

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  • Leave to adduce additional evidence on appeal is granted only in exceptional circumstances, on a case by case basis, applying the Mohamed Abdi Mahamud principles which are not conjunctive but must be substantially met

Court orders

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  1. 1.The notice of motion dated 3/07/2023 is dismissed with the appellant bearing his own costs
  2. 2.The matter shall be mentioned for directions with a view of determining the main appeal on 10/04/2024
On appeal from
Lower court (magistrates' court, not specified)
Jurisdiction invoked
Section 78 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, "Stephen (Suing as the administrator and representative of the estate of Oure Omolo Ogalo) v Omuko & 2 others (All sued as representatives of the Estate of Oluoch Ojuko and in their respective personal capacities) (Environment and Land Appeal E006 of 2023) [2024] KEELC 1054 (KLR)", Case Analysis (2024). Not stated in the extracted judgment (notice of motion dated 3/07/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1054/eng@2024-02-29

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