Okemwa v Ogowo (Environment and Land Appeal E001 of 2025) [2025] KEELC 6218 (KLR)
The bottom line
#The High Court refused to let a party add new documents on appeal that he could have used at trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court should exercise its discretion and grant the applicant leave to admit additional evidence as prayed in his application
- 2.Who should bear the costs of the application
Key legal issues
#Whether the applicant met the Mohamed Abdi Mohamud test for admission of additional evidence on appeal
The application failed because all the documents were in the applicant's possession before and during the 2024 trial
The bank statements spanned December 2021 to March 2022, the screenshots were taken in 2022, the transfer was recorded on 6th June 2022 and the Land Control Board consent was granted on 5th April 2022, all before the 2024 trial. The applicant had power over their production but chose not to tender them, and no reason of due diligence was advanced.
Whether the advocate-client confidentiality justification exempted the applicant from producing the bank statements
No - privilege is not self-executing and was not validly invoked, waived or lifted, and the statements were uncertified and contained third parties' particulars
Section 134 of the Evidence Act protects client communications, with protection continuing after employment ceases. Opening the privilege requires a formal and express procedure, which was not demonstrated by any request to, or consent from, H. Obach & Partners Advocates. The redaction option was never pursued, and the statements were not certified by the bank.
Whether Article 159(2)(d) of the Constitution (substantive justice over procedural technicalities) could cure the applicant's failure
No - where a party deliberately fails to use available procedural opportunities, invoking Article 159 cannot grant a second bite at the cherry
Rules of procedure aid the attainment of justice and equalise the parties. Where one party had the opportunity to use the rules and did not, allowing reliance on Article 159 would confer an unfair advantage over the adverse party who acted bona fide. Order 42 rule 27 is mandatory and cannot be wished away.
Legal principles established
#- Additional evidence on appeal is admitted sparingly and only where it could not with reasonable diligence have been obtained for use at trial
- Advocate-client privilege survives the termination of the employment and can only be lifted by express waiver through a formal procedure
- Article 159(2)(d) is not a licence to disregard procedural rules to cure a party's own defaults
Court orders
#- 1.The application dated 12th February 2025 is hereby dismissed
- 2.The applicant shall bear the costs of the application
- 3.The Appellant is directed to file written submissions within the next 15 days and serve on the Respondent; the Respondent to file theirs within the next 15 days of service
- 4.The Appellant to submit only on the cross appeal within the next 15 days of service of the Cross Appellant's submissions
- 5.Submissions not to exceed four pages of New Times Roman, Font 12 of 1.5 Spacing
- 6.Hearing of the appeal on 25th of November 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Not stated in the judgment
- Suit filed in 2024 (number not stated)
- Jurisdiction invoked
- Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules
Relief refused
#Leave to file additional evidence (bank statements, phone screenshots and land transfer documents) at the appeal
The evidence was in the applicant's possession at trial, no due diligence was shown, the claim of advocate-client confidentiality had no factual or procedural basis, and the application was aimed at filling gaps in his evidence
Costs
The applicant shall bear the costs of the application
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.
If it is granted as it is, it means that the appellant will be automatically closed out of testing the said evidence because the request of the appellant is only that the he files the documents
the threshold for convincing the court to agree to the additional evidence being given on that appellate stage is much higher than the proof on a balance of probabilities
The application dated 12th February 2025 is hereby dismissed.
The applicant shall bear the costs of the application.
Issues in the judgment
#The respondent's Grounds of Opposition are dated 4th April 2015, an apparent typographical error for 2025 given the replying affidavit dated 17th April 2025
Roles are inconsistently used: the applicant is described as 'Respondent/ Cross appellant' and 'Appellant' while the opposing party is both 'Respondent' and 'appellants' in the same passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okemwa v Ogowo (Environment and Land Appeal E001 of 2025) [2025] KEELC 6218 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 12th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6218/eng@2025-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.