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ELCDismissedNot stated in the judgment (Notice of Motion dated 12th February 2025)· [2025] KEELC 6218 (KLR)

Okemwa v Ogowo (Environment and Land Appeal E001 of 2025) [2025] KEELC 6218 (KLR)

High Court of Kenya (appellate jurisdiction over subordinate court appeal)
23 September 2025
5,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The High Court refused to let a party add new documents on appeal that he could have used at trial.

What this practically means

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Executive summary

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This is a ruling by Nyagaka J on a Notice of Motion dated 12th February 2025 in which Nicholas Ochieng Ogowo, the applicant (also styled Respondent/Cross-appellant), sought leave to adduce additional evidence on appeal against a decision of the subordinate court in a land sale dispute with Alice Nyaboke Okemwa. The documents sought were Equity Bank statements for H. Obach & Partners Advocates' account, phone screenshots of communications about the sale agreement, and land transfer documents. The applicant justified non-production at trial on advocate-client confidentiality, alleging the transaction firm had restricted his former advocates from filing the bank statements. The respondent opposed, contending the evidence was in the applicant's possession at trial, that the witness had declined to produce the statements on confidentiality grounds, and that the screenshots would invite a retrial since she denied their authenticity. The court framed two issues: whether leave should issue, and costs. Applying the Mohamed Abdi Mohamud test and Order 42 rule 27, the court held that all the documents predated the 2024 trial and were in the applicant's possession; the confidentiality justification failed because privilege under section 134 of the Evidence Act survives the advocate's employment and may only be lifted by express waiver, which was not demonstrated, and the statements were uncertified and contained third parties' details. The court further held that Article 159(2)(d) could not excuse a party's deliberate failure to use procedural opportunities. The application was dismissed with costs to the applicant, and directions were issued on filing submissions and hearing of the appeal on 25th November 2025.

Key legal issues

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01

Whether the applicant met the Mohamed Abdi Mohamud test for admission of additional evidence on appeal

Holding

The application failed because all the documents were in the applicant's possession before and during the 2024 trial

Reasoning

The bank statements spanned December 2021 to March 2022, the screenshots were taken in 2022, the transfer was recorded on 6th June 2022 and the Land Control Board consent was granted on 5th April 2022, all before the 2024 trial. The applicant had power over their production but chose not to tender them, and no reason of due diligence was advanced.

p. 6
02

Whether the advocate-client confidentiality justification exempted the applicant from producing the bank statements

Holding

No - privilege is not self-executing and was not validly invoked, waived or lifted, and the statements were uncertified and contained third parties' particulars

Reasoning

Section 134 of the Evidence Act protects client communications, with protection continuing after employment ceases. Opening the privilege requires a formal and express procedure, which was not demonstrated by any request to, or consent from, H. Obach & Partners Advocates. The redaction option was never pursued, and the statements were not certified by the bank.

p. 7
03

Whether Article 159(2)(d) of the Constitution (substantive justice over procedural technicalities) could cure the applicant's failure

Holding

No - where a party deliberately fails to use available procedural opportunities, invoking Article 159 cannot grant a second bite at the cherry

Reasoning

Rules of procedure aid the attainment of justice and equalise the parties. Where one party had the opportunity to use the rules and did not, allowing reliance on Article 159 would confer an unfair advantage over the adverse party who acted bona fide. Order 42 rule 27 is mandatory and cannot be wished away.

p. 8

Legal principles established

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  • Additional evidence on appeal is admitted sparingly and only where it could not with reasonable diligence have been obtained for use at trial
  • Advocate-client privilege survives the termination of the employment and can only be lifted by express waiver through a formal procedure
  • Article 159(2)(d) is not a licence to disregard procedural rules to cure a party's own defaults

Court orders

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  1. 1.The application dated 12th February 2025 is hereby dismissed
  2. 2.The applicant shall bear the costs of the application
  3. 3.The Appellant is directed to file written submissions within the next 15 days and serve on the Respondent; the Respondent to file theirs within the next 15 days of service
  4. 4.The Appellant to submit only on the cross appeal within the next 15 days of service of the Cross Appellant's submissions
  5. 5.Submissions not to exceed four pages of New Times Roman, Font 12 of 1.5 Spacing
  6. 6.Hearing of the appeal on 25th of November 2025
On appeal from
Not stated in the judgment
Suit filed in 2024 (number not stated)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 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, "Okemwa v Ogowo (Environment and Land Appeal E001 of 2025) [2025] KEELC 6218 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 12th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6218/eng@2025-09-23

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