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ELCDismissedSiaya ELC Case No. E028 of 2024

Okello & another v Nyadero & another (Land Case Appeal E028 of 2024) [2026] KEELC 2354 (KLR)

Environment and Land Court
28 April 2026
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court refused to let a losing land case party introduce new documents on appeal because they failed to explain why they didn't produce them at trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Siaya (A. E. Dena, J) determines a Notice of Motion dated 26/11/2025 by the appellants in an appeal (Siaya ELC Case No. E028 of 2024) seeking leave to adduce additional evidence - a Declaration over Sale of Land dated 13th April 1983 and a Letter of Consent dated 23rd October 1986 - and consequential leave to file an amended Memorandum of Appeal and a Supplementary Record of Appeal. The applicant deponed that the documents were discovered only after delivery of the trial court's judgment in December 2024 and were necessary for the proper adjudication of the appeal. The 1st respondent opposed, contending that no sufficient cause was shown, that the documents were in the applicant's custody all along, and that they failed the credibility test. The court framed two issues: whether the applicant met the statutory threshold for leave to adduce additional evidence on appeal, and whether such leave would prejudice the respondent. Applying Section 78 of the Civil Procedure Act and the Supreme Court's principles in Muhammed Abdi Muhammed v Ahmed Abdulahi Muhhamed (re-validated in Attorney General v Zinj Limited), the court found the applicant's explanation vague - no date, place, manner of discovery or efforts to obtain the documents were disclosed - and held that the applicant, as plaintiff, would reasonably have procured the documents during trial. The court also found admission would fill gaps in the applicant's case, which had been expressly controverted by the defence, and would be prejudicial and an abuse of process. The application was dismissed in its entirety, with costs of the application ordered to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has met the statutory threshold to warrant the grant of leave to adduce additional evidence in appellate court.
  2. 2.Whether the grant of such leave will prejudice the Respondent.

Key legal issues

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01

Whether the statutory threshold for admitting additional evidence on appeal was met

Holding

The threshold was not met. The applicant's deposition that documents 'recently came to his knowledge' was vague, disclosed no date, place or manner of discovery, and no efforts made to obtain the documents during the trial.

Reasoning

Guided by the Supreme Court's principles in Muhammed Abdi Muhammed, the court held that an applicant must demonstrate the documents could not have been obtained with reasonable diligence and must approach the court with honesty and candour. The applicant, as plaintiff, would reasonably have been aware of and procured a declaration over sale of land and letter of consent in the course of trial based on the pleadings.

p. 12
02

Whether the grant of leave would prejudice the respondents

Holding

Yes. The defence had expressly controverted the alleged sale and put the plaintiff to strict proof; admitting the documents at appeal stage would allow the applicant to fill gaps in her case, amounting to an abuse of process.

Reasoning

The Amended Statement of Defence had challenged the plaintiff to show how the late Michael Okello Musach acquired the parcel and to prove the sale. Producing documents after judgment to shore up that unproven case would prejudice the respondents and constitutes an attempt to patch up the weak points of a case after an unsuccessful trial.

p. 14

Legal principles established

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  • An applicant for leave to adduce additional evidence on appeal must make full and candid disclosure of when, where and how the documents were discovered and why they could not be obtained with reasonable diligence for use at the trial; vague depositions will not suffice.
  • An unsuccessful party cannot use additional evidence on appeal to fill gaps or patch up weak points in its case; doing so is prejudicial and an abuse of process.

Court orders

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  1. 1.Leave to adduce additional evidence denied
  2. 2.Prayer to file amended Memorandum of Appeal and Supplementary Record of Appeal denied
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Lower court (trial court)
Jurisdiction invoked
Section 78 of the Civil Procedure Act, Chapter 21, Laws of Kenya (powers of an appellate court to take additional evidence)

Relief refused

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Leave to file additional evidence (Declaration over Sale of Land dated 13th April 1983 and Letter of Consent dated 23rd October 1986) in support of the appeal

The applicant did not demonstrate that the documents could not have been obtained with reasonable diligence for use at the trial; the explanation was vague and the admission of the documents would fill gaps and prejudice the respondents.

p. 11

Leave to file an amended Memorandum of Appeal and a Supplementary Record of Appeal

These prayers were dependent upon the grant of leave to adduce additional evidence, which was denied.

p. 14

Costs

The costs of the application shall abide the outcome of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Vague depositions crafted with a view to concealing the very issues that are required to be brought to the attention of the court will not suffice for purpose of grant of leave to adduce additional evidence.
p. 12Duty of candour in applications for additional evidence on appeal
This is an attempt in my view to now fill in gaps in support of her case which will be prejudicial to the respondents. It is also an abuse of the court process.
p. 14Abuse of appellate process through gap-filling evidence
The upshot of the foregoing is that it is the finding of this court that the application has not met the threshold to warrant the grant of leave to adduce additional evidence in appellate court.
p. 14Conclusion - application dismissed
The costs of the application shall abide the outcome of this appeal.
p. 14Costs order

Issues in the judgment

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minor

The judgment inconsistently refers to the applicant's gender, variously describing the 1st Appellant (Kenneth Omondi Okello) as 'he' and 'she'

minor

The respondents' submissions were not on record when the ruling was prepared

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, "Okello & another v Nyadero & another (Land Case Appeal E028 of 2024) [2026] KEELC 2354 (KLR)", Case Analysis (2026). Siaya ELC Case No. E028 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2354/eng@2026-04-28

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