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ELCAllowedNot stated in the excerpt· [2025] KEELC 1000 (KLR)

Bunde v Osoro & 2 others (Environment and Land Appeal E017 of 2022) [2025] KEELC 1000 (KLR)

Environment and Land Court
4 March 2025
NYNYAGAKA
3,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner to present new succession documents on appeal because they only came into existence after the original trial ended.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Homa-Bay (Nyagaka J, delivered 4th March 2025) on an application dated 6th May 2024 by the Appellant, Joseph Odhiambo Bunde, seeking leave to file additional evidence on his appeal against the decision in Homa-Bay Chief Magistrate's Court ELC No 5 of 2020. The subordinate court's judgment of 7th April 2022 was based on a grant in HC Succession Cause 3 of 2018 concerning the estate of Bunde Odongo and Omutu Odongo; that grant was revoked on 12th July 2023, the register was rectified on 5th October 2023, and parcel Kanyanda/Kotieno Katuma A/885 reverted to the deceased. The Appellant sought to adduce the revocation order, official search and green card, arguing they were unavailable at trial. The Respondent opposed, alleging collusion to manufacture evidence, arguing the evidence would patch gaps, that res judicata and sub judice barred the course, and that an alternative adverse possession claim was never adjudicated. The court framed one issue: whether leave to adduce additional evidence should be granted. Applying Section 78 of the Civil Procedure Act, Order 42 Rules 27-29 and the Supreme Court's Mohamed Abdi Mahamud principles, the court held the evidence directly relevant and unobtainable with due diligence at trial, and found no evidence of collusion. The application was allowed; judgment on appeal was arrested to receive the additional evidence with cross-examination; each party to bear its own costs.

Key legal issues

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01

Whether leave should be granted to adduce additional evidence on appeal

Holding

Leave granted: the revoked grant order, official search and green card were directly relevant and could not have been obtained with reasonable diligence before trial.

Reasoning

The court applied the Supreme Court's Mohamed Abdi Mahamud principles. The judgment in CM ELC No 5 of 2020 was based on a grant in Succession Cause 3 of 2018 which was subsequently revoked on 12th July 2023, with register entries nullified on 5th October 2023. The documents post-dated the trial and could not have been obtained with due diligence. The collusion allegation by the Respondent was unsupported by any evidence. Admission would serve the interest of justice.

p. 6

Legal principles established

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  • Leave to adduce additional evidence on appeal is granted only in exceptional circumstances under the Mohamed Abdi Mahamud principles.
  • Evidence arising from post-judgment orders of a court of competent jurisdiction, which could not have been obtained with due diligence at trial and is directly relevant, may be admitted on appeal in the interest of justice.

Court orders

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  1. 1.The application dated 6th May, 2024 is allowed as prayed
  2. 2.Leave granted to the Appellant to adduce additional evidence being the order of revoked grant, official search and green card for Kanyanda/Kotieno Katuma A/885
  3. 3.The orders for preparation of the Judgment on appeal set aside and the judgment arrested
  4. 4.Appeal set down for mention on 2nd April 2025 to fix a date for viva voce evidence limited to the additional document, with cross-examination and re-examination if any
  5. 5.Each party to bear its own costs of the Application

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 42 Rules 27, 28 and 29

Cases cited (2)

  • Mohamed Abdi Mahamud & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR)
    [2018] KESC 62 (KLR)
  • Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende
    [2022] eKLR
On appeal from
Chief Magistrate's Court, Homa-Bay (ELC)
ELC No 5 of 2020
Jurisdiction invoked
Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules

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) [2025] KEELC 1000 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1000/eng@2025-03-04

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