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ELCPartially AllowedNot stated in judgment

Daniel & 7 others v Daniel & 2 others (Environment and Land Case E050 of 2021) [2025] KEELC 7129 (KLR)

Environment and Land Court
21 October 2025
2,271 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court refused to review its earlier ruling and ordered rental income held in a joint account released to the defendants.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) dealt with two competing applications arising from the court's ruling of 13/11/2024 (the impugned ruling). The plaintiffs, by an application dated 5/12/2024, sought review of the impugned ruling, reinstatement and enforcement of an order of 24/10/2023, and an injunction restraining the defendants from collecting rental income from Muputi/Kiima Kimwe/60 and Kalama Kiitinu/1573 to their exclusion. They relied on alleged new evidence, including minutes of a family meeting and a Business Registration Service document. The defendants opposed, contending the application was an abuse of process, res judicata, belated, and based on documents already within the plaintiffs' knowledge, some allegedly forged. The defendants, by their application dated 26/01/2025, sought release to their own account of all rental monies and accrued interest held in a joint KCB-Machakos account, plus a bank statement. The court observed preliminarily that the injunctive reliefs were res judicata and that there was no order of 24/10/2023 capable of enforcement, the impugned ruling having vacated it. On review, applying Section 80 of the Civil Procedure Act, Order 45 Rule 1(1) of the Civil Procedure Rules and Nderitu v Assets Recovery Agency [2024] KECA 1612 (KLR), the court held the alleged new matter failed the due-diligence threshold and the application was inordinately late. The plaintiffs' application was dismissed and the defendants' application allowed, with the joint account funds released to the defendants and a bank statement ordered, costs in the cause. The court also restricted further applications except with leave and directed compliance with Order 11.

Questions the Court framed

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

  1. 1.whether the plaintiffs have met the legal threshold to warrant the review of the orders issued in the impugned ruling, and if not,
  2. 2.whether the reliefs sought in the defendants' application should be allowed

Key legal issues

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01

Whether the plaintiffs met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules

Holding

They did not; the alleged new and important matter was within their knowledge long before the impugned ruling and the application was filed late

Reasoning

The court applied Order 45 Rule 1(1) and the Nderitu v Assets Recovery Agency principles. The Business Registration Service document was availed on 19/03/2021, before the application of 20/09/2023, and some documents were in the plaintiffs' lists or showed plaintiffs as participants. No due diligence averment was made in the supporting affidavit. The application was also inordinately late, so the discretion to review was not exercised in the plaintiffs' favour.

p. 5
02

Whether the defendants' application for release of the joint account monies and a bank statement should be allowed

Holding

Allowed; the joint account orders having been vacated by the impugned ruling, the funds and accrued interest were to be released to the defendants' account

Reasoning

Having found no merit in the review, and noting that the orders of 18/10/2023 issued on 24/10/2024 were vacated by the impugned ruling, the court found the defendants' motion merited and ordered release of the rental monies and accrued interest plus a bank statement, with costs in the cause.

p. 5

Legal principles established

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  • An applicant for review on the ground of newly discovered evidence must demonstrate due diligence, that the evidence was not within their knowledge or reach, that it is significant enough to alter the outcome, and must apply without unreasonable delay

Court orders

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  1. 1.The plaintiffs' application dated 5/12/2024 is dismissed
  2. 2.All monies received from the rental properties in Muputi/Kiima-Kimwe/60 and Kalama Kiitinu/1573 deposited in the joint account at KCB-Machakos Branch, together with accrued interest, be released to the defendants' Co-operative Bank-Machakos Branch account
  3. 3.Kenya Commercial Bank-Machakos Branch to furnish a bank statement to the defendants, jointly and/or severally, from the date of operation of the joint account to the date of the ruling
  4. 4.Except with leave of the court, there shall be no further filing of applications in this matter
  5. 5.Parties directed to comply fully with Order 11 of the Civil Procedure Rules
  6. 6.A mention date to be given for pre-trial directions
  7. 7.Costs shall be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

Relief refused

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Review of the ruling of 13/11/2024

Plaintiffs failed to show the new documents were not obtainable with due diligence before the impugned ruling, and the application was filed inordinately late

p. 5

Reinstatement and enforcement of the order dated 24/10/2023

No such order is capable of enforcement as the impugned ruling vacated it

p. 3

Injunction restraining defendants from collecting rental income from the suit properties

Res judicata, similar orders having been sought in the application dated 20/09/2023 decided in the impugned ruling

p. 3

Costs

Costs shall be in the cause.

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.

That the plaintifis' application dated 5/12/2024 is hereby dismissed.
p. 5dismissal of review application - final orders
That all the monies received from the rental properties contained in Muputi/KiimaKimwe/60 and Kalama Kiitinu/1573 that had been deposited in a joint account held in a/c no. XXXXXXXXX, Kenya Commercial Bank-Machakos Branch, between the law firm of Joseph Mwongela & Company Advocates and the 2nd plaintifi, Monica Ndunge Daniel, together with the accrued interest, be released to the defendants' bank account no. XXXXXXXXX, Cooperative Bank-Machakos Branch.
p. 5release of joint account funds - final orders
That except with leave of the court, there shall be no further filing of applications in this matter.
p. 5restriction on further applications - final orders
To successfully apply for a review, the applicant must clearly specify the new evidence and how it was discovered, demonstrate its significance and potential to alter the outcome and provide proof that the evidence was not available at the time of the original proceedings despite reasonable efiorts to obtain it.
p. 5threshold for review on newly discovered evidence

Issues in the judgment

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minor

Internal inconsistency in dates: the affidavit in support of the plaintiffs' motion is described as 'deposed on the instant date' (13/11/2024 application) while the application is dated 5/12/2024; the court also refers to an order dated 24/10/2024 in one place and 24/10/2023 in others

minor

The 2nd plaintiff's replying affidavit to the defendants' application is dated 02/04/2024, earlier than the application dated 26/01/2025 it responds to

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, "Daniel & 7 others v Daniel & 2 others (Environment and Land Case E050 of 2021) [2025] KEELC 7129 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7129/eng@2025-10-21

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