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ELCAllowedELC Case No. 575 of 2017 (Notice of Motion dated 5th December 2025)

Bunyi v Lepaso & 3 others (Environment and Land Case 575 of 2017) [2026] KEELC 2895 (KLR)

Environment and Land Court
13 May 2026
1,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Defendants/Applicants in ELC Case No. 575 of 2017 moved the court by Notice of Motion dated 5th December 2025 seeking review of the judgment delivered on 22nd October 2022 and the decree of 5th November 2024, a stay of execution, and reopening of the case for a re-hearing to tender additional evidence. They relied on certified proceedings in Ngong Criminal Case No. 587 of 2017, in which the 1st Applicant was acquitted and the trial magistrate found the Respondent had failed to prove ownership of the suit property, plus concessions by PW6 and PW9 (the Land Registrar) that the registry lacked Land Control Board consents and mutation forms supporting the subdivision yielding the suit property. The applicants, who claim occupation since 1987, also deposed, in a Further Affidavit of 25th March 2026, to parallel enforcement steps by the Respondent through Jenks Auctioneers in Miscellaneous Application No. E052 of 2025 at Ngong. The Respondent filed no response or submissions despite leave. M.D. Mwangi J distilled the review threshold under Order 45 Rule 1, applied the Evan B. Nyairo/ Pancras T. Swai formulation, and found the criminal court's findings and the Registrar's concessions to be new, compelling and material evidence striking at the root of the Plaintiff's title. The court allowed the application, reviewed and set aside the 22nd October 2022 judgment in its entirety, reopened the case for re-hearing on the merits, and ordered that costs of the application abide the outcome of the re-hearing.

Questions the Court framed

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

  1. 1.Whether the application meets the threshold for Review under Order 45 Rule 1 of the Civil Procedure Rules
  2. 2.Whether the interests of justice and the Overriding Objective warrant the reopening of the case for a re-hearing

Key legal issues

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01

Whether the discovery of new and important matter or evidence justified review under Order 45 Rule 1

Holding

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.

Reasoning

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.

p. 3
02

Whether the case should be reopened for re-hearing

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 5th December 2025 is hereby allowed
  2. 2.The Judgment delivered on 22nd October 2022 is hereby reviewed and set aside in its entirety
  3. 3.The case is hereby reopened for a re-hearing on the merits to allow the Applicants to tender the additional evidence
  4. 4.The costs of this application shall abide the outcome of the re-hearing

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.

That the Judgment delivered on 22nd October 2022 is hereby reviewed and set aside in its entirety.
p. 4Final orders - review and setting aside of judgment
That the case is hereby reopened for a re-hearing on the merits to allow the Applicants to tender the additional evidence.
p. 4Final orders - reopening for re-hearing
Consequently, the legal threshold for review under Order 45 Rule 1 is fully met.
p. 3Review threshold satisfied
That the costs of this application shall abide the outcome of the re-hearing.
p. 4Costs

Issues in the judgment

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minor

The judgment frames 'three issues for determination' but lists only two issues.

minor

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

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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, "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.