Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2025] KEELC 1000 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to present new succession documents on appeal because they only came into existence after the original trial ended.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant should be granted leave to adduce additional evidence on appeal
Key legal issues
#Whether leave should be granted to adduce additional evidence on appeal
Leave granted: the revoked grant order, official search and green card were directly relevant and could not have been obtained with reasonable diligence before trial.
The court applied the Supreme Court's Mohamed Abdi Mahamud principles. The judgment in CM ELC No 5 of 2020 was based on a grant in Succession Cause 3 of 2018 which was subsequently revoked on 12th July 2023, with register entries nullified on 5th October 2023. The documents post-dated the trial and could not have been obtained with due diligence. The collusion allegation by the Respondent was unsupported by any evidence. Admission would serve the interest of justice.
Legal principles established
#- Leave to adduce additional evidence on appeal is granted only in exceptional circumstances under the Mohamed Abdi Mahamud principles.
- Evidence arising from post-judgment orders of a court of competent jurisdiction, which could not have been obtained with due diligence at trial and is directly relevant, may be admitted on appeal in the interest of justice.
Court orders
#- 1.The application dated 6th May, 2024 is allowed as prayed
- 2.Leave granted to the Appellant to adduce additional evidence being the order of revoked grant, official search and green card for Kanyanda/Kotieno Katuma A/885
- 3.The orders for preparation of the Judgment on appeal set aside and the judgment arrested
- 4.Appeal set down for mention on 2nd April 2025 to fix a date for viva voce evidence limited to the additional document, with cross-examination and re-examination if any
- 5.Each party to bear its own costs of the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Homa-Bay (ELC)
- ELC No 5 of 2020
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the application dated 6th May, 2024 is merited and it is hereby allowed as prayed.
The orders for the preparation of the Judgment on appeal are set aside and the judgment arrested.
It is trite law that not in every instance is leave granted to adduce additional evidence on appeal. It is usually allowed only in exceptional circumstances.
Such an argument is nothing but a hollow noise designed to whip emotions in favour of his client and cloud the clear evidence of a Grant set aside.
Issues in the judgment
#The names of the respondents are not fully stated in the judgment; only 1st and 3rd Respondents appear as present online and counsel is named as Ochieng Robert Ochieng.
Paragraph numbering of the judgment is irregular (paragraph 14 appears within a block quoted passage of Order 42).
The appellate case number of the present appeal is not stated in the ruling.
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) [2025] KEELC 1000 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1000/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.