Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2017] KEELC 1593 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to present title documents obtained after trial, showing appeals can consider new evidence if justified.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the law firm of M/s Gordon Ogolla & Kipkoech was properly on record for the appellant after judgment
- 2.Whether the appellant should be granted leave to adduce additional evidence (Leases, Certificates of Lease and the map sheet of Kangui Township) on appeal
- 3.Whether in the alternative a new trial should be ordered
Key legal issues
#Whether the additional evidence sought to be adduced on appeal meets the test in Order 42 Rule 27 of the Civil Procedure Rules
The application satisfied the test because the Leases and Certificates of Lease were only prepared in 2015 and could not have been procured at trial despite due diligence, and their presence could have influenced the trial court's judgment
The court noted that under Order 42 Rule 27 additional evidence may be admitted where the trial court refused to admit evidence, where the appellate court requires it to pronounce judgment, or for other substantial cause. Drawing on Wanje v Saikwa and later Court of Appeal decisions, the test is unavailability despite due diligence, materiality to the result, and credibility. The title documents were created in 2015, long after trial, and title processing in Kenya can take considerable time. The court held a litigant cannot be faulted for suing over land before obtaining title. The documents were material to proof of ownership, the very issue on which the appellant lost.
Whether the filing of the application before the appellant's new law firm had properly come on record was fatal
No; the irregularity was cured by consent and the application was deemed properly filed
Counsel for the respondents submitted that the application should be struck out because M/s Gordon Ogolla & Kipkoech had not obtained leave to come on record after judgment, replacing previous counsel. The court agreed the application was filed before the firm was properly on record, but noted the irregularity was later cured and it was agreed by consent that the application be deemed properly filed. The court therefore disregarded the submissions on that point and proceeded to the substance of the application.
Legal principles established
#- An appellate court will not allow additional evidence unless such evidence was not available to the party despite exercise of due diligence, and it must be of influence to the result of the case and credible
Court orders
#- 1.The application dated 18 May 2016 is allowed
- 2.The appellant is at liberty to adduce the Leases, Certificates of Lease and the map sheet of Kangui Township
- 3.The appellant will himself adduce in evidence the Leases and Certificates of Lease that he holds
- 4.The map will be produced by the Surveyor, Nyandarua District
- 5.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Nyahururu
- Not stated in the judgment
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act, Cap 21, Laws of Kenya and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules
Relief refused
#Order for a new trial (alternative prayer)
The court allowed the addition of the evidence itself, making a new trial unnecessary; the application was allowed on the primary prayer
Costs
I make no orders as to costs.
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.
the appellate court will not allow additional evidence unless such evidence was not available to the party seeking to adduce it despite exercise of due diligence, and reasonable diligence would not have made it available. Such evidence must also be of such nature as to be of influence to the result of the case, and needs to be credible.
I cannot fault any person for suing in respect of land for which he is yet to acquire title.
I am of the view that the appellant has passed the test laid down in Order 42 Rule 27 and I will therefore allow this application.
The appellant is at liberty to adduce the Leases, Certificates of Lease and the map sheet of Kangui Township. The appellant will himself adduce in evidence, the Leases and Certificates of Lease that he holds. In respect of the map, the same will be produced by the Surveyor, Nyandarua District.
I make no orders as to costs.
Issues in the judgment
#The case number of the appeal and the names of the parties are not stated anywhere in the judgment provided
The grounds in the application skip from (c) to (e), with no ground (d) reproduced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2017] KEELC 1593 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1593/eng@2017-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.