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ELCStruck OutNot stated in the judgment (Homa Bay High Court, Environment and Land appeal)

Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 1483 (KLR)

High Court of Kenya
18 March 2024
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court struck out an appeal application because its supporting documents were not properly sealed and marked by a Commissioner for Oaths.

What this practically means

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Executive summary

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This ruling by G.M.A Ongondo, J of the High Court at Homa Bay, delivered on 18th March 2024, determines an amended Notice of motion dated 19th October 2023 by the applicant, Joseph Odhiambo Bunde, in a pending appeal. The applicant sought leave to file additional evidence concerning land LR No Kanyada/Kotieno/Katuma/2511, a subdivision of original land held by two deceased persons whose estates he represented; a grant over one estate had been annulled in Homa Bay High Court Succession Cause No 3 of 2018, with directions that the original land revert to the names of the deceased. The respondents opposed, alleging the evidence was obtained through collusion between the applicant and his counsel, who had acted for an objector in the succession cause during the pendency of the appeal. The court framed two issues: whether the applicant deserved leave to introduce new evidence on appeal, and costs. Applying Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules, the court found that the annexures to the supporting affidavit had not been sealed and serial-marked by the Commissioner for Oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules. Following Mbalanya and Kombo, it held the requirement mandatory and substantive, not a technicality. Finding nothing properly before it, the court declared the application incompetent and struck it out in its entirety, with costs in the cause.

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 is deserving of leave to introduce new evidence at appeal
  2. 2.Who should bear the costs of this application?

Key legal issues

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01

Whether the applicant should be granted leave to introduce additional evidence on appeal

Holding

The application was incompetent because the documentary annexures sought to be introduced were not sealed and serialised by the Commissioner for Oaths as mandated by Rule 9 of the Oaths and Statutory Declarations Rules

Reasoning

The court noted the annexures to the supporting affidavit were neither marked nor commissioned by the Commissioner for Oaths, contrary to Rule 9. Relying on Mbalanya and Kombo, it held the sealing and marking requirement is mandatory and substantive, not a technicality, serving to ensure only properly presented documents reach the record. Since the documents were improperly presented, the court could not determine whether they could be adduced as additional evidence, and the application fell.

p. 4
02

Costs of the application

Holding

Costs were ordered to be in the cause rather than awarded to either party

Reasoning

Having struck out the application without a determination on the merits of the appeal, the court made no adverse costs order against the applicant, instead reserving costs to the cause.

p. 4

Legal principles established

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  • Rule 9 of the Oaths and Statutory Declarations Rules requiring exhibits to be securely sealed and serial-marked is in mandatory terms and must be complied with before such documents can be admitted in evidence
  • The requirement to securely seal and mark exhibits is a substantive legal act going to admissibility, not a technicality

Court orders

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  1. 1.The amended Notice of motion dated 19th October 2023 is struck out in its entirety
  2. 2.Costs to be in the cause

The bench

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

majority

Wrote the judgment

On appeal from
Not stated in the judgment (referred to as 'the trial court')
Jurisdiction invoked
Appellate jurisdiction under Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 42 Rule 27 of the Civil Procedure Rules, 2010

Relief refused

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Leave to file additional evidence in support of the applicant's case on appeal

The annexures to the supporting affidavit were not sealed and marked with serial letters by the Commissioner for Oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules, so there was nothing properly before the court to consider

p. 4

Costs

Costs to be in the cause.

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.

In the end, I find the application incompetent.
p. 4Outcome - incompetence of the application
Afortiori, the instant application in entirety is hereby struck out.
p. 4Final orders - striking out
Costs to be in the cause.
p. 4Costs
Indeed, Rule 9 (supra) is in mandatory terms, and must be complied with.
p. 3Mandatory nature of Rule 9 sealing requirement
Allowing documents brought in an improper and inappropriate manner to form part of the court's record would prejudice the administration of justice
p. 4Admissibility of improperly presented exhibits

Issues in the judgment

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minor

The judgment records a replying affidavit 'sworn on 31st November 2023', a date that does not exist

minor

The case title and case number are not stated in the judgment text; parties other than the applicant are not named

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, "Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2024] KEELC 1483 (KLR)", Case Analysis (2024). Not stated in the judgment (Homa Bay High Court, Environment and Land appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1483/eng@2024-03-18

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