Mwandori & 8 others v Weda (Environment and Land Petition 19 of 2021) [2026] KEELC 1308 (KLR)
The bottom line
#The Environment and Land Court in Malindi refused to reopen its decision on the Mtwapa-Kidutani settlement committee, confirming that unhappy parties must appeal, not seek 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 the application is a non-starter for being brought under Order 1 Rule 10, Order 45 Rules 1, 2 and 3 and Order 51 instead of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure) Rules 2013
- 2.Whether the judgment of the court should be varied, reviewed or set aside to allow the respondents to file evidence not available at the time of determination
- 3.Whether the court should order the County Surveyor and Land Registrar to conduct boundary demarcation between GL15A and the Nyika Reserve
Key legal issues
#competence of invoking Civil Procedure Rules in a constitutional petition
Reliance on Order 45 is not fatal; the Mutunga Rules lack review provisions, and borrowing CPR provisions to fill that gap is not an indiscriminate application
The court found the Mutunga Rules are silent on review. Citing Benjoh Amalgamated, it accepted that civil procedure principles may be borrowed where not inconsistent with the Constitution. Order 45 allows a person with a legal dispute over a decision to have it reviewed and be heard, consistent with Article 50(1). The objection therefore failed.
Discovery of new evidence and reopening litigation
The applicants, being parties from inception, had ample opportunity to obtain and present survey evidence before judgment; failure to do so cannot justify review
The County Government of Kilifi, NLC and the Land Adjudication Officer were parties from inception and had surveyors; the natural-person respondents could have hired private surveyors. Litigation is adversarial and must end; issues finally determined become res judicata subject only to appeal. A survey sought merely to generate evidence for a rehearing cannot be allowed.
Alleged error on the face of the record
No self-evident error: the petition was not about boundaries, and the court's merits finding that both parcels were government land rendered the boundary immaterial
The petition concerned the propriety of the 1st to 5th respondents' appointment to the settlement committee, not boundaries. The court had found on the merits that both GL15A and Nyika Reserve are government land and that the petitioners were entitled to allocation. Those merit findings can only be challenged on appeal, not review.
Legal principles established
#- Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A wrong conclusion of law by a judge is a ground for appeal, not review; a court cannot sit in appeal on its own judgment
- Review lies only for self-evident errors on the face of the record, not for erroneous conclusions of law
- Issues decided in a final judgment become res judicata, subject only to appeal; litigation should not be dealt with in installments
Court orders
#- 1.The application dated 6th May 2025 is dismissed
- 2.Costs of the application awarded to the petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction invoked in a constitutional petition under Article 50(1) of the Constitution read with Order 45 of the Civil Procedure Rules to fill the gap left by the absence of review provisions in the Mutunga Rules
Relief refused
#Order for County Surveyor and Land Registrar to conduct boundary demarcation between GL15A and Nyika Reserve
The survey would be for producing evidence for a rehearing, which is in substance a review of a merit decision that lies only in appeal; the boundary was immaterial once the court found both parcels to be government land
Leave to file evidence not available at the time of determination, and variation/review/setting aside of the judgment of 3rd April 2025
Applicants were parties throughout, had surveyors available, and failed to present the evidence at the hearing; the matters are res judicata subject only to appeal
Costs
The application dated 6th May 2025 is dismissed with costs to the petitioners.
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 upshot of the foregoing is that the application dated 6th May 2025 lacks merit and it is hereby dismissed with costs to the petitioners.
It is in the public interest that litigation should come to an end, and should not be dealt with in installments.
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review.
Issues in the judgment
#The case/petition number of the proceedings is not stated in the ruling; only the motion date (6th May 2025) and the underlying petition date (23rd August 2021) are given
The replying affidavit is described as filed by 'the respondents' but sworn by 'the first petitioner', an apparent role inconsistency in the ruling
The quotation from National Bank of Kenya Ltd v Njau embeds numbered paragraphs (16, 17, 18) suggesting reproduction of judgment paragraphs rather than a continuous holding
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandori & 8 others v Weda (Environment and Land Petition 19 of 2021) [2026] KEELC 1308 (KLR)", Case Analysis (2026). Notice of Motion dated 6th May 2025 in Petition dated 23rd August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1308/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.