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ELCDismissedNot stated in the judgment

Ochieng v Oduor & 4 others (Environment and Land Case Civil Suit E17 of 2021) [2025] KEELC 7022 (KLR)

Environment and Land Court
16 October 2025
3,764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a land case decided over a year earlier, because late evidence and appeal-style arguments don't qualify for review.

What this practically means

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Executive summary

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The applicant, Alfred Victor Ochieng, moved the Environment and Land Court at Siaya by Notice of Motion dated 10th December 2024 seeking review and setting aside of a judgment delivered on 26th October 2023, leave for the firm of N. Nyaswenta & Associates to come on record post-judgment, and stay of execution. He relied on a survey report he commissioned, alleging it showed the land allegedly given to him does not exist, that the judgment was based on a forged title, that his previous advocate failed to summon key witnesses, and that letters of administration taken out in 2011 were obtained fraudulently. The respondents opposed, contending the filing of a Notice of Appeal extinguished the right to review, that the survey report was not new evidence, and that there was no award to stay. The court framed four issues. First, it allowed the incoming advocates to come on record. Second, applying Multi Choice (Kenya) Limited v Wananchi Group, it held that a notice of appeal is not an appeal for review purposes where no appeal has been instituted under Rule 82, so the application was properly before the court. Third, on the merits, it found the survey report could with due diligence have been produced at trial; the grounds raised amounted to an attempt to appeal against the court's own decision; and the application filed over a year after judgment constituted inordinate delay. Stay was refused because only untaxed costs had been awarded. The application was dismissed with costs to the participating respondents, with leave for the new advocates granted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to the firm of N. Nyasweta & Associates to come on record
  2. 2.Whether the application is properly before this court
  3. 3.Whether the application has met the threshold for grant of orders for review
  4. 4.Who should bear the costs of this application

Key legal issues

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01

Whether leave is required for an incoming advocate to come on record post-judgment

Holding

Leave was granted; no consent between outgoing and incoming advocates was filed, and the respondents did not oppose

Reasoning

Order 9 Rule 9 requires that a change of advocate after judgment be effected by court order or consent of the parties. The court found no consent was filed but noted the respondents raised no opposition, so the court exercised its discretion to allow prayer 2.

p. 4
02

Whether filing a Notice of Appeal extinguishes the right to apply for review

Holding

No; where only a notice of appeal has been lodged and no appeal instituted under Rule 82, the application for review is properly before the court

Reasoning

Relying on Multi Choice (Kenya) Limited v Wananchi Group, the court held that a notice of appeal is an appeal only for limited purposes such as stay applications. Since no evidence showed the appeal had been instituted beyond the notice filed on 27th October 2023, the review application was properly before the court.

p. 5
03

Whether the discovery of a survey report constitutes new and important matter justifying review

Holding

No; the survey report was available to the applicant during the proceedings and with due diligence could have been produced

Reasoning

The applicant had sufficient notice of the adversary's claims from the pleadings and could have armed himself with the appropriate evidence at trial. Introducing the report after determination amounts to fresh evidence to reopen a decided case, which review does not permit.

p. 7
04

Whether the application was filed without unreasonable delay

Holding

No; the application filed on 10th December 2024, over a year after the judgment of 26/10/2023, amounted to inordinate delay

Reasoning

Order 45 requires that a review application be made without unreasonable delay. Judgment was delivered on 26/10/2023 and the application was filed on 10th December 2024, a period of over one year, which the court characterized as inordinate delay disentitling the applicant.

p. 7

Legal principles established

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  • A notice of appeal is not an appeal for purposes of Order 45; the court retains jurisdiction to entertain an application for review where only a notice of appeal has been lodged and no appeal has been instituted under Rule 82 of the Court of Appeal Rules
  • Review is not an appeal in disguise; a party cannot use review to fault how a judgment was arrived at or to reopen a concluded case

Court orders

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  1. 1.Leave granted to the firm of N. Nyasweta & Associates Advocates to come on record post-judgment (prayer 2 allowed)
  2. 2.Application for review and setting aside of the judgment delivered on 26/10/2023 dismissed
  3. 3.Application dismissed with costs to the respondents/defendants who participated in the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules, Sections 13, 3, 7 and 19 of the Environment and Land Court Act, and Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Review and setting aside of the judgment delivered on 26/10/2023

Threshold for review not met: no new evidence discoverable after due diligence, no error apparent on the face of the record, no sufficient reason, and the application was filed after inordinate delay of over one year

p. 8

Stay of execution of the judgment

No award was issued in the judgment save for costs, which were never taxed, hence there is no order to stay

p. 7

Costs

The application is dismissed with costs to the respondents/defendants who have participated in the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application is hereby dismissed with costs to the respondents/ defendants who have participated in the application.
p. 8Final orders - dismissal with costs
In any event a Notice of Appeal for purposes of review proceedings is not an appeal.
p. 5Notice of appeal vs appeal for review purposes
This is a matter where the applicant is evidently introducing fresh evidence after the case has been determined.
p. 7New evidence and due diligence in review
I will reiterate a review is not an appeal. Most of the issues raised are arguments that should seat at the Court of Appeal.
p. 7Review is not a forum for appeal arguments
The upshot of the foregoing is that the applicant has not met the threshold for grant of orders for review including the setting aside of the judgement.
p. 8Failure to meet review threshold

Issues in the judgment

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minor

The judgment inconsistently dates the impugned judgment as 26/10/2023 and 26th August 2023

minor

Typographical errors in the judgment, including misspelling of counsel's firm name as 'N. Nyaswenta', 'N.Nyasweta' and 'Nyanswenta' in different places

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, "Ochieng v Oduor & 4 others (Environment and Land Case Civil Suit E17 of 2021) [2025] KEELC 7022 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7022/eng@2025-10-16

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