Okedi & another v Emadau & 3 others (Environment and Land Appeal E019 of 2025) [2026] KEELC 3969 (KLR) (30 June 2026) (Ruling)

Okedi & another v Emadau & 3 others (Environment and Land Appeal E019 of 2025) [2026] KEELC 3969 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3969 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal E019 of 2025 CN Mugambi, J June 30, 2026 Between Dorika Amojong Okedi 1st Appellant Moses Emongole 2nd Appellant and Evans Madua Emadau 1st Respondent Busia Land Registrar 2nd Respondent Attorney General 3rd Respondent Daniel Emongole Kapule 4th Respondent Ruling Introduction 1.The appellants’ application dated 2.4.2026 seeks the following orders:a.That leave may be granted to adduce additional evidence.b.That the Court may be pleased to consider Land Control Board records and finger print report.c.That the power of attorney, Transaction documents and succession documents (P&A 11, P&A 57) be admitted in evidence.d.That the directorate of Immigration services be directed to produce entry and exit records of the deceased.e.That the directorate of Criminal Investigations be directed to conduct forensic examination of signatures.f.That the original documents be available for examination.g.That directions be given on the hearing of the appeal.h.Costs. 2.The appellants’ application dated 29.4.2026 seeks the following orders:a.That leave be granted to amend the Memorandum of Appeal.b.That the annexed memorandum of appeal be deemed duly filed.c.That leave be granted to file a supplementary record of appeal.d.Costs. The Appellants’/applicants’ Despositions: 3.In support of the application dated 2.4.2026, the 2nd appellant has sworn an affidavit of even date which I summarize as follows:a.That the applicant was represented by counsel during the trial in the lower Court but has since taken over conduct of the matter in person.b.That prior to judgment, the appellants former counsel “indicated” reliance on Land Control Board records, finger print printout report and Immigration records but the said evidence was not properly expounded upon during trial and was not sufficiently considered.c.That Immigration records could not be obtained without Court orders which were not sought.d.That upon due diligence the applicant has obtained Land Control Board register extracts which show executions by persons without demonstrated authority and in some instances after death.e.That upon review of the Land Control Board records, the applicant has also discovered that the correction of his mother’s names was done by her younger brother while there is no evidence that the said younger brother had the authority to do so.f.That the transfer of the suit property from the 1st plaintiff to the deceased was executed by a different individual on behalf of the deceased, without any demonstrated authority to do so.g.That the correction of names by a person without demonstrated authority followed by use of altered particulars raises serious questions as to the accuracy, authenticity and reliability of the identity used in the transaction.h.That the applicant has now obtained the finger prints print out report and has also discovered the power of attorney after judgment.i.That the said power of attorney did not authorize the 1st respondent and 1st plaintiff to effect transfer of the 1st plaintiff’s land.j.That the applicant has also discovered that land measuring 0.60Ha was allegedly acquired in exchange for the 1st applicant’s inheritance although the transaction was initiated before succession of the seller’s Estate was completed.k.The inconsistencies also appear in Succession documents P&A 11 and 12 where individuals appears as both witnesses, sureties and guarantors raising questions as to the procedural regularity. The Respondents’ Grounds Of Opposition 4.The respondents have opposed the application dated 2.4.2026 vide the grounds of opposition dated 7.5.2026 and which I proceed to summarize as follows:-a.That the applicant does not meet the legal threshold for adducing additional evidence as provided for under section 78 of the Civil Procedure Act.b.That the documents in question were at the disposal of the applicant and were part of the records during trial.c.That the applicant intends to conduct a mini trial within a trial.d.That the application is intended to fill the gaps left during trial with the view of arriving at a different decision.e.That the application refers to the production of non-existent documents by entities which require to be sued in a separate suit.f.That the affidavit in support of the Motion is expressed to be sworn in Busia while the stamp indicates that it was commissioned at Nakuru; the affidavit is therefore defective and should be struck out. Applicants’ Further Affidavit: 5.The applicants’/appellants’ further affidavit sworn on 21.5.2026 may be summarized as follows:-a.That the respondents have not filed any replying affidavit to his application but have chosen to rely on technicalities.b.That the power of attorney sought to be introduced in these proceedings was obtained after the conclusion of the trial and was therefore not within the possession control and custody of the applicant during the trial.c.That the said power of attorney is material and relevant to the just determination of the appeal and could not reasonably be produced during trial.d.That no Court orders were sought to compel the directorate of Immigrations services to produce the exit and entry records during the trial proceedings.e.That part of the evidence sought to be produced was not substantially summarized, evaluated and or considered by the trial Court in its determination.f.That this Court, being an appellate Court is lawfully empowered to consider whether relevant evidence was omitted, overlooked and or requires further consideration in the interest of justice.g.That the inconsistences in the affidavit are of a purely procedural nature and inadvertent and does not in any way prejudice the respondent and neither does it affect the substance of the application and the applicant is ready to regularize the affidavit should the Court be minded. The Replying Affidavit By The 4Th Respondent: 6.The replying affidavit sworn by the 4th respondent on 8.5.2026 may be summarized as follows:a.That the primary suit in the lower Court was filed on 2018 and sought the cancellation of the title to L.R NO NORTH/KOCHOLIA/981 (hereinafter the suit property).b.That on 30.12.2019, the appellant applied for leave to amend the plaint on the basis of the discovery of new evidence, the application was allowed and the applicant accordingly amended the plaint.c.That among the documents introduced by the amendments were transfer forms, application for consent, letter of consent and transfer forms for the defendants.d.That on 27.7.2021, the appellant again applied to re-open the plaintiff’s case and for leave to file a supplementary list of documents, the case was re-opened and the appellant filed a further list of documents dated 8.6.2021.e.That the documents in question were in the possession of the appellant during trial.f.That the appellants now intend to try their case afresh in order to fill in gaps.g.That the appellant has conceded that the documents in question form part of the record of appeal.h.That the documents which the appellant wishes to have admitted do not relate to the issue of cancellation of title and or an injunction which was the cause of action in the primary suit.i.That the affidavit in support of the Motion offends the provisions of sections 5 and 8 of Cap 15 of the Laws of Kenya. The Appellants’ Supplementary Affidavit 7.The supplementary affidavit sworn by the appellant on 26.5.2026 may be summarized as follows:a.That while it is true an application for the production of certain documents was made, the Immigration related documents were not obtained and the omission and incomplete pursuit of the orders arose during the conduct of the matter by the previous counsel.b.That the present application is intended to cure procedural and evidential gaps and not to relitigate issues already determined.c.That the appellants rely on documents already forming part of the record of appeal and whose evidential significance and implication were not truly articulated during the trial.d.That the power of attorney is material in evaluating subsequent actions and transactions allegedly undertaken after the deceased’s death.e.That the records relevant to the present application primarily originate from the land registry and Land Control Board processes and are already within the custody of the relevant land administration authorities.f.That contrary to the allegations by the respondents, the appellant only seeks material evidence necessary for the fair and just determination of the appeal and therefore do not seek to construct the case afresh.g.That the present appeal is not a succession cause but relate to land transactions and transfers affecting property interests arising from dealings involving the estate and other parties who participated in the transfer process. The Applicant’s Affidavit In Support Of The Application Dated 29.4.2026: 8.The affidavit sworn by the applicant on 29.4.2026 may be summarized as follows:a.That the appeal arises from the judgment of the trial Court concerning land parcel No Teso/Kocholia/981.b.That a memorandum of appeal was initially filed before the appellants obtained certified proceedings and upon obtaining the proceedings, the applicant has discovered material issues and errors not captured in the initial memorandum of appeal. (The applicant has listed the errors at paragraph 6 of the supporting affidavit).c.That the certified proceedings and relevant documentary evidence were not included in the original record of appeal. The documents are listed at paragraph 9 of the applicant’s supporting affidavit.d.That the intended amendment does not introduce a new cause of action but clarifies and strengthens the existing grounds of appeal.e.That the respondent will suffer no prejudice if the application is allowed. The Respondents’ Grounds Of Opposition: 9.The 1st and 4th respondents have filed grounds of opposition to the application dated 29.4.2026 and the main ground is that the supporting affidavit to the said application offends the provisions of section 5 and 8 of the Oaths and Statutory Declarations Act and therefore on the strength of the reasoning in the case of Regina Munyiva Ndunge -V- Kenya Commerical Bank Ltd (2005) eKLR and confirmed by the Supreme Court in Civil Application NO 26 of 2018 Giedeon Sitelu Konchellah -V- Julius Lekakeny Ole Sunkuli & 2 Others (2018) eKLR, the affidavit should be struck out. The 1st and 4th respondents therefore opine that there is no proper application before the Court for hearing and determination. Analysis And Determination: 10.In the cause of the proceedings, the counsel for the 1st and 4th respondents informed the Court that he would be relying on his grounds of opposition and on his client’s replying affidavit. On their part, the applicants have filed their submissions in support of their applications. 11.I have considered the affidavit, the grounds of opposition and the submissions of the parties and in my humble view, the issues that arise for determination are the following:- a.Whether the affidavits in support of the affiants’/appellants’ application offend sections 5 and 8 of the Oaths and Statutory Declarations Act, Cap 15 of the Laws of Kenya and if so, what is the effect of such offence?b.Whether the applicants have met the threshold for the grant of the orders sought in the applications dated 2.4.2026 and 29.4.2026. Issue A: 12.The affidavit in support of the Motion dated 2.4.2026 expresses itself to have been sworn at Busia on 2.4.2026. The stamp by the Commissioner for Oaths has the impression of one Mr. Otieno G. Odhiambo Advocate & Commissioner for oaths. The stamp is not clear as to the physical location of the said commissioner for oaths. 13.The affidavit in support of the Motion dated 29.4.2026 expresses itself to have been sworn at Busia on 29.4.2026 and is sworn before one Mr. Joseph Wafula Sichangi,a Commissioner for Oaths based at Bungoma. 14.The appellant admits to the discrepancies as to the physical locations of the swearing of the affidavits and the location of the respective Commissioners before whom the affidavits were sworn. It is this discrepancy that the 1st and 4th respondent deem to be fatal to the applicants’ affidavits and on the basis of which the said respondents seek that the affidavits be struck out. 15.Section 5 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya (hereinafter the Act) provides as follows:“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken.”Section 8 of the Act provides as follows:“A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.” 16.An affidavit must therefore clearly state the place and date where it was made and it must be made before a magistrate and commissioner for oaths. Both affidavits under challenge clearly state that they were made in Busia, they have both been taken before commissioners for oaths and I do not understand the 1st and 4th respondent to be challenging the competency of the said commissioners to witness the oaths. Granted that the stamps of the respective commissioners do not indicate that the commissioners are residents of Busia, it does not take away the competency of the commissioners to take the oath at Busia even as their stamps show the location of their law firms’ offices to be away from Busia. 17.In the Supreme Court decision cited by the counsel for the respondents, the 1st respondent in that case had filed a “Replying affidavit” which was not signed, dated or commissioned. The Court delivered itself in that regard to as follows:“We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated, consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent.” 18.In the Supreme Court decision (above), it is clear that the matter under consideration was materially different from the instant application. I do not therefore find that the affidavit by the applicant in both applications contravene sections 5 and 8 of Cap 15 of the Laws of Kenya and the objection by the 1st and 4th respondents on this limb is therefore dismissed. Issue B: 19.The applicants Motion dated 2.4.2026 has sought leave to adduce additional evidence. The documents that the applicant seek to be adduced as additional evidence are “board” records and finger print records, power of attorney and transaction documents, succession documents P&A 11 and 12. The applicant has also sought that the Immigration department be directed to produce the entry and exit records of the deceased and the DCI be directed to conduct a forensic examination of the signatures. 20.The 1st and 4th respondents have objected to the application on the basis that the applicant is seeking a mini trial and that the application does not meet the threshold for the grant of the orders sought. 21.An appellate Courts power to admit additional evidence is donated and regulated by section 78 of the Civil Procedure Act and Order 42 rule 27 both of which provides as follows:Section 78(1):-Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power -(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.Order 42 rule 27 provides as follows:27 (1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Court to which the appeal is preferred; but if: -(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or(b)the Court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.(2)Wherever additional evidence is allowed to be produced by the Court to which the appeal is preferred the Court shall record the reason for its admission.The Supreme Court in the case of Mohamed Abdi Mahamud -v- Ahmed Abdulahi Moahamad and 3 others (2018) eKLR laid down the criteria / guidelines to be followed when appellate Courts are faced with applications for additional evidence on appeal as follows:a.“The additional evidence must be directly relevant to the matter before the Court and be in the interest of Justiceb.It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisivec.It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or Petition by the Party seeking to adduce the additional evidenced.Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has direct bearing on the main issue in the suite.The evidence must be credible in the sense that it is capable of belieff.The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectivelyg.Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due processh.Whether the additional evidence discloses a strong prima facie case of willful deception of the Courti.The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filing gaps in evidence. The Court must find the further evidence needfulj.A Party who has been unsuccessful at the trial must not seek to adduce additional evidence to make a fresh case on appeal, fill up the Omissions or patch up the weak points in his/her case.k.The Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the Court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 22.Does the application under consideration meet the above criteria?It is alleged by the applicant that the Land Control Board register exhibit MEI and ME2 show that the execution thereof was done by a person without a demonstrable authority and were done while the deceased was outside Kenya and in some instances after death. I however note that at paragraph 5 of the supporting affidavit, the appellant depones that the Land Control Board records and finger print report form part of the record of appeal but were not adequately evaluated. 23.It is not clear whether the applicant seeks to give additional evidence on the documents that he already admits forms part of the record and I find allegations that the documents were not adequately evaluated to be an attempt at filling gaps in evidence, fill up omissions and patch up the weak parts of the case. The applicant should be able to deal with the documents as they appear on the record without the necessity of the order sought. 24.The power of attorney dated 10.7.1986 and which the applicant seeks to have admitted as additional evidence is donated by one Richard Ochana in favour of Evans E. Emadau Emongole and M/S Dorica Amojong Emongole over land parcel NO N. Teso/Kocholia/976. The said power of attorney has no relationship with the suit land which is North Teso/Kocholia/981. I do not think that the power of attorney is directly relevant to the matter before the Court and I further do not think it would influence or impact upon the result of the verdict. 25.The appellant has also requested for an order that the succession documents P&A 11 and 12 be admitted as additional evidence. He alleges that there were inconsistencies in the said documents as individuals appear as both witnesses in the agreement and the sureties and guarantors in P&A succession documents. From the exhibits annexed, the succession cause in question is NAIROBI High Court Succession Cause No 203 of 2010. I think the proper place to challenge those documents would have been in the Succession Cause and in any event, it is not clear from the supporting affidavit by the applicant, what use the evidence would be if it was admitted as additional evidence on appeal. 26.The applicants have sought an order that the directorate of Immigration services be directed to produce entry and exit records of the deceased and further that the directorate of Criminal Investigations be directed to conduct forensic examination of signatures. The applicant depones in his affidavit that the Immigration records could not be obtained without Court orders which were not sought. The applicant further depones in his affidavit that the authenticity of the signatures attributed to the deceased and the 1st plaintiff requires forensic examination and that it is necessary for the DCI to conduct the said investigations. 27.In my humble view, the applicant has NOT demonstrated that the reports from the Immigration department and the DCI could not have been obtained with reasonable diligence for use at the trial, was not within his knowledge or could not have been produced at the time of the suit. As a matter of fact, the applicant has not demonstrated any effort to secure the said reports during the trial and the consequences thereof. 28.The appellants Motion dated 29.4.2026 seeks the Court’s leave to amend the memorandum of appeal. I have already summarized the affidavit of the appellant in support of the said Motion. The respondent did not file any replying affidavit to the said Motion but only filed grounds of opposition which only challenged the appellants’ supporting affidavit. I have elsewhere in this ruling, already found that the affidavits do not offend the Oaths and Statutory Declaration Act Cap 15 of the Laws of Kenya. In these circumstances, the application stands unopposed. 29.In regard to the amendment of the memorandum of appeal, order 42 rule 3 of the Civil Procedure Rules provides as follows:“The appellant may amend his memorandum of appeal without leave at any time before the Court gives directions under rule 13.”Rule 13 of Order 42 provides as follows:-“On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal, the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers.” 30.No directions have been given in this appeal and therefore the appellant does not require the leave of the Court to amend his memorandum of appeal and he is at liberty to do so. Disposition: 31.Following from the above findings, I hereby make the following orders in disposing of both applications:a.The application dated 2.4.2026 is dismissed with costs to the 1st and 4th respondents.b.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.c.Each party will bear their own costs of the application dated 29.4.2026. C. MUGAMBIJUDGE30TH JUNE 2026RULING DATED, SIGNED AND DELIVERED IN OPEN COURT ON THIS 30TH DAY OF JUNE 2026.C. MUGAMBIJUDGE