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ELCDismissedBondo PM ELC Appeal (from Bondo PM ELC Cause No. E038 of 2022)· [2026] KEELC 420 (KLR)

Mitalo v Okello (Land Case Appeal E028 of 2024) [2026] KEELC 420 (KLR)

Environment and Land Court
30 January 2026
1,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Siaya confirmed you cannot reopen a decided land case just to add evidence you already had but failed to present at trial.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya by John Ouma Mitalo against a ruling of Hon. J. P. Nandi (SPM) delivered on 31st July 2024 in Bondo PM ELC Cause No. E038 of 2022, dismissing his application dated 3rd July 2024 seeking, inter alia, leave for change of advocates and the setting aside of the judgment of 19th December 2023 for a retrial of the entire suit. The appellant complained that his former advocates failed to present crucial documents (demarcation reports, 1980 Land tribunal proceedings, judgment in L/C 143, subdivision notes and a village elder's letter) and failed to take witness statements, and that parties had recorded a consent allowing the application. The respondent did not oppose the appeal and agreed the application should have been allowed, save on costs. The court, sitting as a first appellate court, framed three issues: whether the appeal was merited, what reliefs should issue, and who should bear costs. Applying Unigroup Transporters Limited v Mwasawe, it held that review cannot be used to supplement or introduce new evidence, and that a party seeking a new trial must show no remissness in adducing all possible evidence at trial. The attempt to reopen the case to produce evidence already available was not justifiable, so the trial magistrate's dismissal was affirmed and the appeal was dismissed, with no order as to costs, both parties having submitted that each bear their own costs.

Key legal issues

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01

Whether the trial court's refusal to set aside its judgment of 19th December 2023 and order a retrial was correct

Holding

Yes - the appellant was attempting to reopen the case to produce evidence that was already available to his former advocates, which is not justifiable; the learned Magistrate reached the correct conclusion

Reasoning

The application dated 3rd July 2024, though framed as a setting-aside application, was in essence a review application. Following Unigroup Transporters Limited v Mwasawe, review cannot be used to supplement evidence or introduce new evidence; the party must show due diligence. The documents (demarcation reports, Land tribunal matters, LC judgment, subdivision notes) had been furnished to the previous advocates but not presented - a remissness attributable to the party. By parity of reasoning the limitation on new-evidence applications applies. The trial court's dismissal was therefore affirmed.

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02

What reliefs ought to issue and who bears the costs of the appeal

Holding

The appeal, lacking merits, is dismissed; both parties submitted that each should bear its own costs and the court made no order as to costs

Reasoning

Having found no merits in the grounds of appeal, the appellant suffers the fate of dismissal even though the respondent was essentially not opposed to the appeal. On costs, both parties strongly submitted that each party ought to bear its own costs, and the court accordingly made no order as to costs. The dismissal was not converted into an allowance by the respondent's non-opposition.

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Legal principles established

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  • Review cannot be sought to supplement one's evidence or to introduce new evidence; the applicant must show due diligence and lack of knowledge of, or deprivation of, the evidence at trial
  • The rule permitting a new trial on discovery of new evidence is fenced with limitations; the party seeking a new trial must show there was no remissness on his part in adducing all possible evidence at the trial

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs - each party to bear its own costs
On appeal from
Principal Magistrate's Court, Bondo
Bondo PM ELC Cause No. E038 of 2022 (Ruling of 31st July 2024 by Hon. J. P. Nandi, SPM)
Jurisdiction invoked
First appellate jurisdiction over a ruling of the Principal Magistrate's Court (ELC cause), appeal under the Civil Procedure Act; application originally brought under Section 3A of the Civil Procedure Act

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, "Mitalo v Okello (Land Case Appeal E028 of 2024) [2026] KEELC 420 (KLR)", Case Analysis (2026). Bondo PM ELC Appeal (from Bondo PM ELC Cause No. E038 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/420/eng@2026-01-30

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