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Court of AppealDismissedNot stated in the judgment (motion on notice dated 12th March 2024)

Onchiri & 490 others v Omami & 11 others (Civil Application E081 of 2022) [2025] KECA 767 (KLR)

Court of Appeal
9 May 2025
2,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to accept new ownership evidence on appeal because the applicants could have obtained it from the public Land Registry before trial.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (Karanja, M'Inoti and Nyamweya, JJA) dismissing a motion dated 12th March 2024 by applicants who, pending appeal against the Environment and Land Court's judgment of 26th April 2021 (Bor, J.) dismissing their petition over 13 properties in LR No. 209, sought leave to adduce further evidence: certificates of search, copies of titles, correspondence on subdivision and amalgamation, and an Impact Assessment Report. Applying Rule 31(1)(b) of the Court of Appeal Rules, 2022, and the principles in Mohamed Abdi Mohamud, Wanje v. Saikwa and Jirongo v. Soy Developers, the court held the application fails on two independent grounds. First, the applicants, who pleaded ownership and whose claim was denied by the respondents, could not demonstrate due diligence: searches are available at the public Land Registry, and they conducted none before trial, only after losing. Secondly, the proposed evidence is not relevant to the central question and could not influence the appeal, because the searches and titles do not support the applicants' pleaded ownership claim but instead tend to prove the respondents' registered proprietorship. The application was dismissed with costs to the 3rd, 4th and 5th respondents; the other respondents did not appear though served. The underlying appeal remains pending; the trial court's judgment was not disturbed.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted leave to adduce further evidence (certificates of search, copies of titles and correspondence) on appeal
  2. 2.Whether the applicants could not, by exercise of due diligence, have obtained the evidence for use at trial
  3. 3.Whether the evidence is directly relevant to the central question in the appeal and would influence its outcome

Key legal issues

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01

Due diligence requirement for admission of further evidence on appeal

Holding

The applicants totally failed to demonstrate that searches and titles could not have been obtained by due diligence before trial.

Reasoning

The applicants claimed ownership of 13 properties in their petition, and the respondents disputed that ownership, so it was obvious to diligent litigants to conduct searches on the titles. The Land Registry is a public office accessible to anyone. The applicants placed no evidence of any efforts to search before trial; they only conducted searches after losing their case. Their failure satisfies the court that the due diligence limb of the additional-evidence test is not met.

p. 5
02

Relevance and impact of the proposed further evidence on the appeal's outcome

Holding

The proposed searches and titles are not directly relevant to the central question and would not influence the outcome, because they contradict rather than support the applicants' ownership claim.

Reasoning

Even if admitted, the documents do not assist the applicants: they do not prove their pleaded claim to ownership. On the contrary, the searches and titles tend to establish the respondents' claim that they are the registered proprietors. Evidence that undermines rather than advances the applicant's own case cannot influence the verdict in their favour and fails the Mohamed Abdi Mohamud relevance and impact criteria.

p. 5
03

Rule 31(1)(b) is not a vehicle for patching up a failed case

Holding

The power to admit additional evidence must be exercised sparingly and not to enable an unsuccessful party to make a fresh case on appeal.

Reasoning

Relying on Wanje v. Saikwa and Mohamed Abdi Mohamud, the court reaffirmed that rule 31(1)(b) does not authorise admission of evidence to remove lacunae, fill gaps or patch up weak points. There would be no end to litigation if parties could improve their cases by calling further evidence on appeal. The applicants, having lost at trial, were attempting to introduce searches they ought to have obtained before trial, a classic impermissible use of the rule.

p. 4

Legal principles established

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  • An appellate court will only admit additional evidence where the applicant shows the evidence could not have been obtained with reasonable diligence before trial, and it is directly relevant and capable of influencing the outcome of the appeal.
  • Land registry searches are publicly accessible, so a party claiming ownership of registered land is expected, as a diligent litigant, to conduct and produce searches before trial; failure to do so disqualifies the admission of those searches as further evidence on appeal.

Court orders

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  1. 1.The motion dated 12th March 2024 seeking leave to adduce further evidence is dismissed
  2. 2.Costs of the application awarded to the 3rd, 4th and 5th respondents

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Nairobi
Petition filed on or about 26th June 2010 (number not stated)
Jurisdiction invoked
Rule 31(1)(b) of the Court of Appeal Rules, 2022; Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act (as referenced in the rule's rationale)

Relief refused

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Leave to adduce further evidence (certificates of search, copies of titles, correspondence on subdivision/amalgamation and an Impact Assessment Report) on the appeal

The applicants failed to show the evidence could not have been obtained with due diligence before trial, and the evidence does not support their ownership claim but tends to prove the respondents' registered ownership

p. 5

Costs

Application dismissed with costs to the 3rd, 4th and 5th respondents.

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.

Taking all the foregoing into account, we do not find any merit in the motion dated 12th March 2024 and, the same is hereby dismissed with costs to the 3rd, 4th and 5th respondents. It is so ordered.
p. 5Final orders - dismissal of the application
we are also not satisfied that even if the Court were to admit the evidence, it is directly relevant to the central question in the appeal or that it will infiuence the outcome of the appeal.
p. 5Relevance and impact limb of the additional-evidence test
The applicants have not placed before the court any efiorts they made to conduct searches on the title. From the depositions in support of the application, the applicants did not conduct any search before trial, and only did so after they lost their case.
p. 5Due diligence failure
This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal.
p. 4Restatement of Wanje v. Saikwa on the sparing use of rule 31(1)(b)

Issues in the judgment

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minor

The judgment does not state the appeal number or neutral citation for this application, limiting precise citation of the decision.

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, "Onchiri & 490 others v Omami & 11 others (Civil Application E081 of 2022) [2025] KECA 767 (KLR)", Case Analysis (2025). Not stated in the judgment (motion on notice dated 12th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/767/eng@2025-05-09

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