https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1077

Ongidi & another v Oduge & 14 others (Civil Appeal (Application) E056 of 2023) [2026] KECA 1077 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1077 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal (Application) E056 of 2023 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between Philip Otieno Ongidi 1st Applicant Kennedy Odhiambo Ongidi 2nd Applicant and Benjamin Otieno Oduge 1st Respondent Land Adjudication Officer, Nyando 2nd Respondent Land Registrar Nyando 3rd Respondent Chief Land Registrar 4th Respondent National Land Commissioner 5th Respondent The Attorney General 6th Respondent and Erastus Akoth Rakwach 1st Interested Party Thomas Omolo Opondo 2nd Interested Party Samuel Rabach Sure 3rd Interested Party Andrea Sure 4th Interested Party Joseph Muga Ojiem 5th Interested Party Barnabas Jamwa Muga 6th Interested Party Mariko Okello Muga 7th Interested Party Daniel Ojwang Ongudi 8th Interested Party William Olwendo Ojwang 9th Interested Party (Being an application to adduce evidence arising from the Judgment and Decree of the Environment and Land Court at Kisumu, (Ombwayo, J.) dated 22nd September, 2022inPetition No. E004 of 2020) Ruling 1.By an application dated 29th January 2025, Phillip Otieno Ongidi and Kennedy Odhiambo Ongidi, the 1st and 2nd applicants respectively, seek leave to adduce additional evidence orally or by way of an affidavit before the trial court or by a commissioner, on grounds that the additional evidence is directly relevant to the matter which is before the Court; and will influence or impact on the resultant verdict. 2.The applicants explain that at the time the judgment was entered in Environment and Land Court (ELC) Petition No. E004 of 2020 on 22nd February 2022, the actual size of the disputed land parcel No. Kisumu/Wawidhi B/4158, had not been determined; that subsequent to the Surveyor’s report which was obtained after the trial, the correct acreage is actually 38 acres; and the disputed portion is 14.6 acres. The applicants maintain that the evidence is neither huge nor complex, and will not pose a serious challenge to the respondents’; further, that it is not intended to make a fresh case or fill in the gaps in the applicant’s case. 3.The additional evidence sought to be adduced touches on the acreage of the suit land and thus will remove any vagueness or doubt over the case and thus credible in the sense that it is capable of belief, as the documents sought to b produced are in the custody of the applicants. 4.The genesis of this application is that the applicants were dissatisfied with the decision of the ELC, which was delivered on 22nd February 2022 in ELC Pet No. E004 of 2020 (Ombwayo, J.), where the applicants as the petitioners sought orders to declare that the land adjudication process carried out in respect of the said parcel, was discriminatory, illegal; and violated their constitutional rights including the right to property; a declaration that the said property was actually 40 acres; and orders of rectification of the record. Their case before the ELC was that their father Maricus Ongidi owned 30 acres of the said parcel, but in the course of time the 7th respondent, Erastus Akoth Rakwach, who was the Interested Party at the trial, had hived off 10 acres for his use. Maricus filed suit against the 7th applicant, and obtained eviction orders in KSM CMCC No.25 of 1995. An appeal by the 7th respondent being KSM HCCCA No. 121 of 191; was dismissed by the High Court (Tanui, J.) on 18th March 2002. 5.According to the applicants, the 7th respondent, to defeat the court order, colluded with the Kisumu Land Adjudication Officer to fraudulently create another parcel number from a purported larger acreage of the same parcel so that the 7th respondent would benefit. The petition was dismissed on grounds inter alia, that there existed other dispute mechanisms for resolving the dispute; and the court’s jurisdiction should not have been invoked. 6.The respondents did not to file a response to the application. 7.The principles to be considered by this Court in determining whether or not to allow the applicant to adduce additional evidence on appeal were discussed in the Supreme Court’s decision of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others (2018) eKLR as follows:“[79]Taking into account the practice of various jurisdictions outlined above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:a.The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;b.It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;c.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 evidence;d.Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;e.The evidence must be credible in the sense that it is capable of belief;f.The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;g.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 process;h.Where the additional evidence discloses a strong prima facie case of wilful (sic deception of the Court;i.The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.j.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.” 8.The applicant’s counsel appreciates the criteria set out by the Supreme Court; thus, our singular task is to grapple with the question of whether the application herein is merited. In the case of Dorothy Nelima Wafula v Hellen Nekesa Nielson & another [2017] KECA 654 (KLR) this Court held that:“...before the Court can permit additional evidence to be adduced under Rule 29 (now Rule 31), it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing, two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible,though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.” 9.In Peninah Nandako Kiliswa v Independent Elections and Boundaries Commission & 2 others [2014] KECA. 807 (KLR), this Court reiterated its policy, that the power to call additional evidence is required to be exercised very sparingly and with great caution, adding that:“…As a general rule an appellate Court will not admit such evidence unless it was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available. However, there is an exception where the grounds on which adduction of additional evidence on appeal is premised on fraud or surprise.” 10.Our assessment of what the applicants present clearly shows that the applicants have not explained why the said evidence could not be procured in time during hearing before the trial Court despite reasonable diligence. The judgment being appealed was rendered on 22nd September, 2022, and it is not apparent that despite their diligence, the said evidence was only availed after judgment was delivered. What made it so difficult to get a surveyor before or even during the trial to establish the contested acreage? Our evaluation of the facts in the support of the application and the submission made before us, does not satisfy us that the applicants have made a case for us to exercise our discretion that entitles an order of adduction of additional evidence that the applicants crave for. The perception created is that this is an attempt to patch up the loopholes detected by the trial court in the judgment. 11.The upshot is that the application lacks merit and is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL........................................H. A. OMONDIJUDGE OF APPEAL........................................L. KIMARUJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR