Mwaniki v (Secretary) & 3 others () Sued as the officials of Kibarage Slums Association); Kenya Railways Corporation & another (Intended Interested Party) (Environment and Land Case 91 of 2020) [2025] KEELC 7134 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to reopen a 2021 land judgment, ruling that three-year delay and late-joining parties cannot revive a concluded case.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to review its judgment where a notice of appeal was filed
The court has jurisdiction since no Record of Appeal was filed in the Court of Appeal
The Plaintiff argued the Defendants had invoked the Court of Appeal's jurisdiction by filing a Notice and Memorandum of Appeal, ousting review. Relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd as cited in HA v LB, and Multichoice Kenya Ltd v Wananchi Group, the court held that a notice of appeal does not institute an appeal; an appeal is only instituted when the record of appeal is lodged. Since no Record of Appeal was proved, review jurisdiction remained available.
Whether the Defendants met the threshold for review on discovery of new evidence
No - the alleged new survey evidence did not warrant review and the application was brought after inordinate delay
Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, review requires discovery of new and important matter not obtainable with due diligence, made without unreasonable delay. The survey report dated December 2022 was obtained post-judgment, yet the application was filed over three years after judgment. The Defendants also inconsistently claimed the land was public while having counterclaimed title by adverse possession, which is unavailable over public land. No sufficient cause for review was shown.
Whether intended interested parties can be joined post-judgment
No - joinder is not available once proceedings are concluded
Relying on Republic v Nairobi City County Council Assembly, parties seeking to be enjoined must apply before determination and demonstrate a direct interest and necessity of their presence. The suit had been concluded over three years earlier; the intended interested parties did not demonstrate their interest or how their presence would enable the court to reopen and determine the matter. Joinder was therefore untimely, irregular and unnecessary.
Legal principles established
#- The High Court retains jurisdiction to entertain an application for review despite the lodging of a notice of appeal, as an appeal is not instituted until the record of appeal is lodged
- An application for review must be made without unreasonable delay
- Joinder of parties is not available after determination of a suit
Court orders
#- 1.Dismissal of the Defendants' Notice of Motion dated 20th March 2025
- 2.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki v (Secretary) & 3 others () Sued as the officials of Kibarage Slums Association); Kenya Railways Corporation & another (Intended Interested Party) (Environment and Land Case 91 of 2020) [2025] KEELC 7134 (KLR)", Case Analysis (2025). Notice of Motion dated 20th March 2025 (in the suit judgment delivered 16th September 2021 before Justice BM Eboso). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7134/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.