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ELCPartially AllowedNot stated in the judgment (arising from MCELC 2 of 2018 – Ngong)· [2025] KEELC 6913 (KLR)

Mborothi & another v Kanyia (Environment and Land Appeal 036 of 2024) [2025] KEELC 6913 (KLR)

Environment and Land Court
9 October 2025
LKL. Komingoi
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kajiado court ordered retrieval of a video recording and transcript of missing land evidence instead of forcing a witness to testify all over again.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 25th March 2025 in an appeal pending before the Environment and Land Court at Kajiado, arising from MCELC 2 of 2018 at Ngong before Hon. P. Achieng. The Appellants sought retaking of the testimony of the County Land Registrar, Jonathan Oseur, alleging improper recording of his evidence of 18th July 2024; alternatively, an order allowing him to give fresh evidence; or, further alternatively, an order compelling the Chief Magistrate's Court at Ngong to supply the video recording of that testimony and to have it transcribed as the official record. The application was supported by the affidavit of the 2nd Appellant, Dorcas Muthoni Maina, and opposed by the Respondent, Susan Ngina Kanyila, who argued the evidence was not new but an attempt to fill evidentiary gaps and shore up a weak case. The court, per L. Komingoi J, framed one issue: whether the application was merited. Relying on Section 78 of the Civil Procedure Act, Order 42 Rules 27–29, the Supreme Court's principles in Mohammed Abdi Mohamud, and the Court of Appeal's decision in Wanja v Saikwa, the court found merit in the application. It did not order retaking of the evidence; instead it granted the alternative prayers compelling production of the video recording and its transcription as the official record, with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether additional evidence may be taken on appeal

Holding

Yes. The court was persuaded that the testimony of the County Land Registrar would assist the court to determine the dispute to finality, invoking Section 78 of the Civil Procedure Act and Order 42 rules 27, 28 and 29.

Reasoning

The court applied the Supreme Court's principles in Mohammed Abdi Mohamud and the Wanja v Saikwa principles. It found the Registrar is the sole custodian of the land records and his testimony is crucial to resolving the dispute over Plot 273. Rather than retake the evidence, the court chose the practical route of obtaining the video recording and transcribing it as the official record.

p. 4

Legal principles established

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  • An appellate court may admit additional evidence where it is required to enable the court to pronounce judgment or for any other substantial cause, per Order 42 rule 27(1)(b)
  • The Mohammed Abdi Mohamud principles govern the admission of additional evidence on appeal, including relevance, influence on the result, and inability to obtain the evidence with reasonable diligence at trial

Court orders

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  1. 1.An order compelling the Chief Magistrate's Court at Ngong Law Courts to provide the video recording of the proceedings held on 18th July 2024 before Honourable P. Achieng at 12:30pm specifically capturing the testimony of the County Land Registrar, Jonathan Oseur
  2. 2.Upon issuance of that order, the court to transcribe the testimony as adduced by the County Land Registrar, Jonathan Oseur, and the same be incorporated as the official and accurate record of his proceedings
  3. 3.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 78
  • Civil Procedure RulesOrder 42 Rules 27, 28 and 29
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (3)

  • Mohammed Abdi Mohamud v Ahmed Abdullahi Mohammed & 3 Others
    (2018) eKLR
  • Florence Akinyi Odula v Akamba Public Road Services Ltd & Another
    (2014) eKLR
  • Wanja –Vs- Saikwa
    (1984) 275
On appeal from
Chief Magistrate's Court at Ngong
MCELC 2 of 2018 – Ngong
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Section 78 of the Civil Procedure Act; Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules; Article 50(1) of the Constitution of Kenya, 2010

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, "Mborothi & another v Kanyia (Environment and Land Appeal 036 of 2024) [2025] KEELC 6913 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from MCELC 2 of 2018 – Ngong). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6913/eng@2025-10-09

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