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ELCDismissedNotice of Motion dated 20th March 2025 (in the suit judgment delivered 16th September 2021 before Justice BM Eboso)· [2025] KEELC 7134 (KLR)

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)

Environment and Land Court
15 October 2025
2,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendants, members of the Kibarage Slums Association, moved the court by Notice of Motion dated 20th March 2025 seeking review, vacation or setting aside of the judgment delivered on 16th September 2021 by Justice BM Eboso, which declared the Plaintiff the lawful proprietor of LR No. 209/9002/2 and 209/9002/3; joinder of Kenya Railways Corporation and the National Land Commission as interested parties; and a stay of execution. They relied on a survey report indicating the suit property encroaches on an old railway alignment and was never surrendered by Kenya Railways, contending the land is public. The Plaintiff opposed, arguing the Defendants had filed a Notice and Memorandum of Appeal thereby ousting review jurisdiction, that the application was brought after inordinate delay of nearly four years, and that joinder post-judgment was irregular. The court first held, relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd, that since no Record of Appeal was proved filed, review jurisdiction subsisted despite the notice of appeal. However, on the merits, the court found the Defendants failed to establish the Order 45 threshold: the alleged new evidence was discovered post-judgment in December 2022 yet the application came over three years later without plausible explanation, and the Defendants inconsistently claimed the land was public despite having counterclaimed adverse possession. The intended interested parties also failed to demonstrate a direct interest or necessity of joinder in a concluded suit. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the court has jurisdiction to review its judgment where a notice of appeal was filed

Holding

The court has jurisdiction since no Record of Appeal was filed in the Court of Appeal

Reasoning

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.

p. 5
02

Whether the Defendants met the threshold for review on discovery of new evidence

Holding

No - the alleged new survey evidence did not warrant review and the application was brought after inordinate delay

Reasoning

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.

p. 6
03

Whether intended interested parties can be joined post-judgment

Holding

No - joinder is not available once proceedings are concluded

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Dismissal of the Defendants' Notice of Motion dated 20th March 2025
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 44
  • Court of Appeal RulesRule 58
  • Court of Appeal RulesRule 81(1)
  • Civil Procedure RulesOrder 41 Rule 4(1)

Cases cited (17)

  • Jaber Mohsen Ali & Another v Pricillah Boit & Another
    E&L No. 200 of 2012 [2014] eKLR
  • Republic v Administrative Review Board & 2 Others
    [2018] eKLR
  • Mputhia v M'miriti
    [2025] KEHC 756 (KLR)
  • Bernard Ndungu Mbugua v Nairobi Water & Sewerage Company Limited
    [2021] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Jacinta Wairimu Njoroge v Julia Wanjiru & 4 Others
    [2015] eKLR
  • China Road and Bridge Corporation Kenya v Ecorite Mining Company Limited & 6 Others
    [2021] eKLR
  • Rubina Ahmed & 3 Others v Guardian Bank Ltd
    [2019] eKLR
  • George Kamau Kimani & 4 Others v County Government of Transnzoia & Another
    [2016] eKLR
  • Paul Mwaniki v National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Yani Haryanto v. E. D. & F. Man. (Sugar) Limited
    Civil Appeal No. 122 of 1992
  • HA v LB
    [2022] KEHC 2886 (KLR)
  • Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others
    [2020] eKLR
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2019] eKLR
  • Karanja v Murigi
    [2025] KECA 517 (KLR)
  • Afapack Enterprises Limited v Punita Jayant Acharya (Suing as the Administrator of the Estate of the late Suchila Anatrai Raval)
    [2018] eKLR
  • Republic v Nairobi City County Council Assembly & another; Musumba & 4 others (Exparte Applicants)
    [2025] KEHC 5656 (KLR)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "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.