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ELCDismissedNot stated in judgment· [2024] KEELC 3400 (KLR)

Oganga v Were (Environment and Land Appeal E010 of 2023) [2024] KEELC 3400 (KLR)

Environment and Land Court
25 April 2024
AKA. Y. Koross
1,754 words in judgment
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The bottom line

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A Siaya court refused to let a land appellant add his birth and school certificates late, warning that appeals cannot be used to patch weak cases.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Siaya (A. Y. Koross, J) on a notice of motion dated 24 November 2023 in which the appellant, acting in person, sought leave to file additional evidence on appeal, namely his primary school certificate and birth certificate, which he said had been misplaced and could not be produced before the trial court. He contended he had sought leave before the trial court but it was declined, and that the documents were pertinent to the just determination of the dispute. The respondent, also in person, objected, alleging the birth certificate was fraudulent since the appellant was born in 1956 and not 1961, and noting they are siblings sharing one mother but different fathers. Both sides relied on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR. The court framed a single issue: whether the appellant should be granted leave to adduce additional evidence, grounded in Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules. Applying the Mohamed Abdi Mahamud principles, the court held such leave is granted only in exceptional circumstances; the documents were personal to the appellant, within his knowledge and obtainable with due diligence, and not directly relevant since the appellant's case rested on customary trust and both parties were already registered as land proprietors. The court found the application an attempt to fill gaps and patch up weak points, and dismissed the motion with costs to the respondent, directing mention for directions on the main appeal on 28/5/2024.

Key legal issues

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01

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

Holding

Application dismissed; the additional evidence was not relevant to the outcome, was within the appellant's knowledge and obtainable with due diligence, and was an attempt to make a fresh case on appeal

Reasoning

The court applied the Mohamed Abdi Mahamud principles. The appellant's case was hinged on customary trust and both parties were registered as proprietors during first registration, so the certificates were not directly relevant. The documents were personal, long within his knowledge, and obtainable from public offices with diligence. The court found he never sought leave before the trial court and that allowing the evidence would enable an unsuccessful party to patch up weak points.

p. 4

Legal principles established

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  • Leave to adduce additional evidence on appeal is granted only in exceptional circumstances and an applicant must substantially meet the Mohamed Abdi Mahamud criteria, which are not conjunctive

Court orders

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  1. 1.Notice of motion dated 24/11/2023 dismissed with costs to the respondent
  2. 2.Matter to be mentioned for directions on 28/5/2024 with a view of determining the main appeal
On appeal from
Trial court (not named in judgment)
null
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, "Oganga v Were (Environment and Land Appeal E010 of 2023) [2024] KEELC 3400 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3400/eng@2024-04-25

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