Okedi & another v Emadau & 3 others (Environment and Land Appeal E019 of 2025) [2026] KEELC 3969 (KLR)
The bottom line
#A Kenyan High Court refused a land appellant's bid to add new evidence on appeal but allowed the appeal to be amended without prior court permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the supporting affidavits offended sections 5 and 8 of the Oaths and Statutory Declarations Act
The objection was dismissed. Both affidavits stated they were made in Busia and were taken before competent commissioners for oaths; the location of the commissioners' law firm stamps does not defeat their competency.
Section 5 requires the commissioner to state truly in the jurat the place and date of taking the oath. The affidavits complied: they were expressed to have been sworn at Busia and were taken before commissioners for oaths whose competency was not challenged. The discrepancy between the place of swearing and the commissioners' stamp locations does not render the affidavits defective. The Supreme Court authority relied on by the respondents was distinguishable because there the affidavit was unsigned, undated and uncommissioned.
Whether leave to adduce additional evidence should be granted under section 78 of the Civil Procedure Act and Order 42 rule 27
Dismissed. The Land Control Board records and fingerprint report already formed part of the record; the power of attorney related to a different parcel (N. Teso/Kocholia/976); succession documents should be challenged in the succession cause; and Immigration/DCI reports could not be shown to have been unobtainable with reasonable diligence at trial.
Applying the Mohamed Abdi Mahamud criteria, the applicant failed to show the evidence was directly relevant to the suit parcel, would influence the verdict, or could not have been obtained with reasonable diligence. Documents admittedly on the record cannot be re-admitted as additional evidence; complaints about inadequate evaluation are attempts to fill gaps and patch weak points. The power of attorney concerned land other than the suit property, and alleged irregularities in succession documents should be raised in the succession cause.
Whether leave was required to amend the memorandum of appeal and file a supplementary record
The application dated 29.4.2026 was allowed to the extent that no leave was required, as no directions under Order 42 rule 13 had been given.
Order 42 rule 3 permits an appellant to amend the memorandum of appeal without leave at any time before the Court gives directions under rule 13. Since no directions had been given in this appeal, the appellant was free to amend without leave. The respondents' only opposition was the affidavit objection, which the Court had already rejected, leaving the application unopposed.
Legal principles established
#- An affidavit must clearly state the place and date it was made and be made before a commissioner for oaths; the stamp of a commissioner showing a law firm office away from the place of swearing does not invalidate the affidavit or negate the commissioner's competency to take the oath.
- A materially different defective affidavit does not render a properly sworn affidavit fatal; the Konchellah decision concerned an unsigned, undated and uncommissioned affidavit.
- An appellant may amend a memorandum of appeal without leave at any time before the Court gives directions under Order 42 rule 13.
- Documents already part of the record of appeal cannot be re-introduced as 'additional evidence'; complaints about their inadequate evaluation amount to filling gaps in evidence.
Court orders
#- 1.The application dated 2.4.2026 is dismissed with costs to the 1st and 4th respondents
- 2.The application dated 29.4.2026 is allowed to the extent that the appellant did not, at this stage, require the leave of the Court to amend his memorandum of appeal
- 3.Each party will bear their own costs of the application dated 29.4.2026
- On appeal from
- Subordinate court (trial court / lower court)
- Not stated in the judgment
- Jurisdiction invoked
- Appellate powers under section 78 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okedi & another v Emadau & 3 others (Environment and Land Appeal E019 of 2025) [2026] KEELC 3969 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3969/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.