Bunyi v Lepaso & 3 others (Environment and Land Case 575 of 2017) [2026] KEELC 2895 (KLR)
The bottom line
#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 meets the threshold for Review under Order 45 Rule 1 of the Civil Procedure Rules
- 2.Whether the interests of justice and the Overriding Objective warrant the reopening of the case for a re-hearing
Key legal issues
#Whether the discovery of new and important matter or evidence justified review under Order 45 Rule 1
Yes - the findings of the criminal court and the concessions by the Land Registrar and the Plaintiff's counsel constitute new, compelling and material evidence striking at the root of the Plaintiff's title, and the review threshold is fully met.
The Applicants obtained certified criminal proceedings in Ngong Criminal Case No. 587 of 2017 in which the trial magistrate found the Respondent failed to prove ownership, and in which PW9 (the Land Registrar) conceded the registry lacked Land Control Board consents and mutation forms supporting the subdivision. This evidence was not available at the ELC trial, and the Respondent filed no affidavit to rebut it. The court applied the Nyairo/Swai formulation of the review threshold and found it satisfied.
Whether the case should be reopened for re-hearing
Yes - having found the review application merited, the judgment must be set aside to allow the Applicants to adduce the new evidence, and the case is reopened for re-hearing on the merits.
The court held that once review under Order 45 Rule 1 is established, the natural consequence is to set aside the impugned judgment so the Applicants may tender the additional material evidence. The court expressly declined to determine the remaining issue separately, finding it unnecessary once review was granted. The application was also unopposed, the Respondent having filed neither a response nor submissions despite leave.
Legal principles established
#- A court's power to review its own judgment is discretionary but must be exercised strictly within the confines of Order 45 Rule 1, and is available upon discovery of new and important matter or evidence not available despite due diligence.
Court orders
#- 1.The Notice of Motion application dated 5th December 2025 is hereby allowed
- 2.The Judgment delivered on 22nd October 2022 is hereby reviewed and set aside in its entirety
- 3.The case is hereby reopened for a re-hearing on the merits to allow the Applicants to tender the additional evidence
- 4.The costs of this application shall abide the outcome of the re-hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap 21), read with Order 22 Rule 22, Order 45 Rules 1 and 2, and Order 51 of the Civil Procedure Rules, 2010
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.
That the Judgment delivered on 22nd October 2022 is hereby reviewed and set aside in its entirety.
That the case is hereby reopened for a re-hearing on the merits to allow the Applicants to tender the additional evidence.
Consequently, the legal threshold for review under Order 45 Rule 1 is fully met.
That the costs of this application shall abide the outcome of the re-hearing.
Issues in the judgment
#The judgment frames 'three issues for determination' but lists only two issues.
Prayer (a) of the motion sought a stay of execution of the Judgment and Decree, but the final orders made no express order on stay of execution.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bunyi v Lepaso & 3 others (Environment and Land Case 575 of 2017) [2026] KEELC 2895 (KLR)", Case Analysis (2026). ELC Case No. 575 of 2017 (Notice of Motion dated 5th December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2895/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.