Ndungi v Macua (Environment and Land Appeal 60 of 2021) [2024] KEELC 1219 (KLR)
The bottom line
#A Kenyan land appeal failed because the appellant tried to introduce land records he could have used at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant established a case for leave to adduce additional evidence on appeal under Order 42 Rule 27 and Section 78 of the Civil Procedure Act
The application failed. Adduction of additional evidence on appeal is not automatic; the criteria in Mohamed Abdi Mohamud were not met because the evidence was in the Appellant's possession or obtainable with reasonable diligence, counsel's mistake is no excuse, and the evidence was an attempt to fill gaps and patch weak points.
The court applied the Mahamud guidelines. The green cards for parcels 952 and 1200 showed the Appellant's name from 1958 and 1981 respectively, so the documents were within his knowledge and could have been produced at trial. Blaming former advocates is insufficient. The green cards are public records obtainable with due diligence, and the suit was filed in 2018, giving ample time. Citing Barclays Bank, the application was dismissed with costs.
Legal principles established
#- A mistake or omission of counsel in the conduct of a case does not amount to a ground for admitting additional evidence on appeal
- A case belongs to the litigant, who cannot simply blame advocates on record for transgressions in the conduct of litigation
- A party who had entries in official land records from decades earlier cannot feign ignorance and claim the documents could not have been obtained with reasonable diligence
Court orders
#- 1.The Appellant's Notice of Motion dated 5/10/2022 seeking leave to adduce additional evidence (green cards for Kiambaa/Kihara/367, Kiambaa/Kihara/355, Kiambaa/Kihara/952 and Kiambaa/Kihara/1200) is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- Subordinate Court (lower court not named in the judgment)
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction under Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungi v Macua (Environment and Land Appeal 60 of 2021) [2024] KEELC 1219 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1219/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.