Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 1483 (KLR)
The bottom line
#A Kenyan High Court struck out an appeal application because its supporting documents were not properly sealed and marked by a Commissioner for Oaths.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant should be granted leave to introduce additional evidence on appeal
The application was incompetent because the documentary annexures sought to be introduced were not sealed and serialised by the Commissioner for Oaths as mandated by Rule 9 of the Oaths and Statutory Declarations Rules
The court noted the annexures to the supporting affidavit were neither marked nor commissioned by the Commissioner for Oaths, contrary to Rule 9. Relying on Mbalanya and Kombo, it held the sealing and marking requirement is mandatory and substantive, not a technicality, serving to ensure only properly presented documents reach the record. Since the documents were improperly presented, the court could not determine whether they could be adduced as additional evidence, and the application fell.
Costs of the application
Costs were ordered to be in the cause rather than awarded to either party
Having struck out the application without a determination on the merits of the appeal, the court made no adverse costs order against the applicant, instead reserving costs to the cause.
Legal principles established
#- Rule 9 of the Oaths and Statutory Declarations Rules requiring exhibits to be securely sealed and serial-marked is in mandatory terms and must be complied with before such documents can be admitted in evidence
- The requirement to securely seal and mark exhibits is a substantive legal act going to admissibility, not a technicality
Court orders
#- 1.The amended Notice of motion dated 19th October 2023 is struck out in its entirety
- 2.Costs to be in the cause
- On appeal from
- Not stated in the judgment (referred to as 'the trial court')
- Jurisdiction invoked
- Appellate jurisdiction under Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 42 Rule 27 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 1483 (KLR)", Case Analysis (2024). Not stated in the judgment (Homa Bay High Court, Environment and Land appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1483/eng@2024-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.