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ELCDismissedNot stated in judgment

Ondiek (Suing as the Administrator/Legal Representative of the Estate of Joel Ondiek Alwala) v Onyango (Sued as the Administrator/Legal Representative of the Estate of Charles Onyango Alwala) & 2 others (Environment and Land Appeal E065 of 2021) [2025] KEELC 8476 (KLR)

Environment and Land Court
4 December 2025
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a 2023 land judgment, ruling that documents created after a judgment cannot count as newly discovered evidence.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kisumu (E. Asati, J) on a Notice of Motion dated 5th August 2025 brought under Order 45 Rule 1 of the Civil Procedure Rules 2010 and section 19(2) of the Environment and Land Court Act. The Applicants sought leave for the firm of Agnes & Matthews Law LLP Advocates to come on record in place of Ngala Awino & Company Advocates, which was unopposed and granted, and substantively sought review and setting aside of the judgment and decree dated 13th July 2023, with the appeal dismissed with costs to them. The Applicants argued that a Grant of Letters of Administration Ad Litem over the estate of Priska Ochieng Alwala, obtained in Kisumu succession proceedings, was new and important evidence showing the Appellant's title was acquired by intermeddling in the estate, and that its discovery met the review threshold. The Respondent opposed, citing settlement of costs, a consent marking the matter settled, inordinate delay of about two years, and pendency of KISUMU ELC NO. 37 OF 2025. The court held that reviewable new evidence must have existed at the time of judgment and be discoverable only after due diligence; a grant created after judgment does not qualify. It further held that the court is functus officio on the merits once judgment is delivered, such grievances lying on appeal, and that the application was brought after unreasonable and unexplained delay. The application was dismissed with costs to the Respondent (Appellant).

Questions the Court framed

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

  1. 1.Whether the firm of Agnes & Matthews Law LLP Advocates should be granted leave to come on record in place of the firm of Ngala Awino & Company Advocates
  2. 2.What constitutes new and important evidence capable of founding an application for review of a judgment under Order 45 Rule 1
  3. 3.Whether the discovery of the Grant of Letters of Administration Ad Litem met the threshold for review
  4. 4.Whether the application was brought without unreasonable delay

Key legal issues

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01

Threshold for review on grounds of discovery of new and important matter

Holding

The 'new evidence' ground requires evidence in existence at the time of judgment that due diligence could not uncover; succession proceedings and a grant ad litem created after judgment do not qualify

Reasoning

The court distinguished between evidence discovered after judgment and documents brought into existence after judgment. The Letters of Administration Ad Litem over the estate of Priska Ochieng Alwala were obtained through proceedings the Applicants themselves instituted after the judgment, so they could not be 'discovered' in the Order 45 sense. The applicants also knew of the deceased all along.

p. 4
02

Whether review can attack the merits of a delivered judgment

Holding

No; the court becomes functus officio on the merits after delivering judgment, and any challenge to the propriety of the judgment is a matter for appeal

Reasoning

The Applicants' real complaint was that the appellate judgment should not have been decided in favour of a party who allegedly acquired land fraudulently through intermeddling in an estate. The court held this is an attack on the merits of the judgment, addressable only on appeal, not through review, since the court's function on the merits is spent.

p. 4
03

Delay in bringing the review application

Holding

The application, brought about two years after judgment, was made after unreasonable and unexplained delay, disqualifying it from review

Reasoning

Order 45 requires that a review application be brought without unreasonable delay. The judgment and decree were dated 13th July 2023 and the application filed on 5th August 2025, roughly two years later, with no adequate explanation. Reliance was placed on Gerphas Alphonse Odhiambo v Felix Adiego on delay and explanation going hand in hand.

p. 4
04

Defective framing of the application

Holding

Although argued on discovery of new evidence, the application did not disclose the specific grounds under Order 45 Rule 1

Reasoning

The Notice of Motion did not plead discovery of new and important matter; that ground emerged only in submissions. The court nonetheless considered the question of what constitutes new and important evidence but found the ground unsupported by the application itself, reinforcing dismissal.

p. 3

Legal principles established

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  • Reviewable new evidence under Order 45(1) must have been in existence at the time of judgment and discoverable only after due diligence, not evidence created after judgment
  • After delivering judgment, a court is functus officio as to the merits; grievances with the correctness of the judgment lie on appeal, not review

Court orders

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  1. 1.Leave granted to the firm of Agnes & Matthews Law LLP Advocates to come on record in place of the firm of Ngala Awino & Company Advocates
  2. 2.The Notice of Motion dated 5th August 2025 is dismissed
  3. 3.Costs to the Respondent in the application (Appellant)

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 2010 and section 19(2) of the Environment and Land Court Act

Relief refused

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Review and setting aside of the judgment and decree dated 13th July 2023 and substitution with an order dismissing the appeal with costs

The application did not meet the threshold for review; the supposed new evidence was created after judgment, not discovered, and the application was brought after unreasonable and unexplained delay; the court is functus officio on the merits

p. 4

Costs

Costs to the Respondent in the application (Appellant).

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 new evidence envisaged in order 45(1) is evidence that was in existence as at the time the judgement was made which evidence did not come to the knowledge of the Applicant even after exercise of due diligence but was discovered after the judgement sought to be reviewed.
p. 3Definition of new and important evidence for review
Having delivered the judgement, the court is functus oficio as far as the merit of the judgement is concerned.
p. 4Functus officio after judgment
I find that the application does not meet the threshold for an application for review of judgement. None of the grounds under Order 45 Civil Procedure Rules have been demonstrated. The application lacks merit and is hereby dismissed. Costs to the Respondent in the application (Appellant).
p. 4Final orders - dismissal and costs

Issues in the judgment

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minor

Date of the Grant of Letters of Administration Ad Litem given inconsistently as 28th October 2025 in one passage and 28th October 2024 in another

minor

The citation to Mjanaheri Farm Limited is left incomplete, with the case name appearing under paragraph 7 separated from the submission text

minor

Spelling of the deceased's name varies between 'PRISKA OCHIENG ALWALA' and 'Prisca Ochieng Alwala'

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, "Ondiek (Suing as the Administrator/Legal Representative of the Estate of Joel Ondiek Alwala) v Onyango (Sued as the Administrator/Legal Representative of the Estate of Charles Onyango Alwala) & 2 others (Environment and Land Appeal E065 of 2021) [2025] KEELC 8476 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8476/eng@2025-12-04

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