Ochieng v Oduor & 4 others (Environment and Land Case Civil Suit E17 of 2021) [2025] KEELC 7022 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to the firm of N. Nyasweta & Associates to come on record
- 2.Whether the application is properly before this court
- 3.Whether the application has met the threshold for grant of orders for review
- 4.Who should bear the costs of this application
Key legal issues
#Whether leave is required for an incoming advocate to come on record post-judgment
Leave was granted; no consent between outgoing and incoming advocates was filed, and the respondents did not oppose
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.
Whether filing a Notice of Appeal extinguishes the right to apply for review
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
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.
Whether the discovery of a survey report constitutes new and important matter justifying review
No; the survey report was available to the applicant during the proceedings and with due diligence could have been produced
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.
Whether the application was filed without unreasonable delay
No; the application filed on 10th December 2024, over a year after the judgment of 26/10/2023, amounted to inordinate delay
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.
Legal principles established
#- 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
#- 1.Leave granted to the firm of N. Nyasweta & Associates Advocates to come on record post-judgment (prayer 2 allowed)
- 2.Application for review and setting aside of the judgment delivered on 26/10/2023 dismissed
- 3.Application dismissed with costs to the respondents/defendants who participated in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The application is dismissed with costs to the respondents/defendants who have participated in the application.
Quotable passages
#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.
In any event a Notice of Appeal for purposes of review proceedings is not an appeal.
This is a matter where the applicant is evidently introducing fresh evidence after the case has been determined.
I will reiterate a review is not an appeal. Most of the issues raised are arguments that should seat at the Court of Appeal.
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.
Issues in the judgment
#The judgment inconsistently dates the impugned judgment as 26/10/2023 and 26th August 2023
Typographical errors in the judgment, including misspelling of counsel's firm name as 'N. Nyaswenta', 'N.Nyasweta' and 'Nyanswenta' in different places
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.