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ELCDismissedNot stated in judgment

Wandary & 104 others v Bharmaz & another (Environment and Land Case E019 of 2021) [2026] KEELC 2899 (KLR)

Environment and Land Court
13 May 2026
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to reopen a decided case, confirming you cannot use review to fix weak evidence you should have presented at trial.

What this practically means

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Executive summary

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The plaintiffs brought an application dated 17th March 2025 seeking review of the judgment of M.A. Odeny J. delivered on 25th November 2022, by which their adverse possession suit was dismissed with no orders as to costs for failure to prove when they took possession, the specific portions occupied and the period of occupation, and because the plaintiffs were not a homogeneous group with the same entry dates. In support, the first plaintiff swore an affidavit offering to explain the year each applicant entered occupation and the specific portions each occupied, if granted leave to adduce new evidence. Mwangi Njoroge J. held that the application was misconceived: a review lies only for glaring omission, patent mistake or like grave error, not for a rehearing, as the Supreme Court held in Outa v Okello citing Sow Chandra Kanta and Northern India Caterers. The offer to adduce further evidence by affidavit exposed the true nature of the application - an attempt to reopen the trial and fill evidential gaps that existed when the suit was prosecuted, which amounts to piecemeal litigation and a second bite at the cherry. Relying on Telkom Kenya Ltd v Ochanda, the court held that it became functus officio upon issuance of judgment and could only review, not reopen, the judgment for taking of further material evidence. The application for review under Order 45 was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the plaintiffs' application for review of the judgment of M.A. Odeny J. dated 25th November 2022 is merited
  2. 2.Whether the court, having rendered final judgment and become functus officio, may reopen the matter for the adduction of further evidence

Key legal issues

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01

Limits of the power of review

Holding

Review is not a vehicle for a rehearing; minor mistakes or a second trip over ineffectually covered ground are insufficient grounds.

Reasoning

The court relied on Outa v Okello (SC) citing Sow Chandra Kanta and Northern India Caterers to hold that a judgment is final and departure from that principle requires circumstances of a substantial and compelling character. The applicants' complaint that their case could have been better pleaded goes to rehearing, not review.

p. 2
02

Functus officio and additional evidence

Holding

Once judgment is entered the court is functus officio and may not reopen the matter for taking further material evidence; the proper course is review or appeal.

Reasoning

Applying Telkom Kenya Ltd v Ochanda, the court held that admitting affidavit evidence after judgment effectively reopens the trial and amends the judgment, which is impermissible. The doctrine of finality bars merit-based re-engagement once judgment is perfected, subject only to narrow exceptions such as correcting clerical errors.

p. 3
03

Litigation in piecemeal

Holding

A party cannot be permitted to close evidential gaps after judgment by seeking to adduce evidence that was available at trial.

Reasoning

The court found the plaintiffs were offering to produce more evidence to enable a positive judgment, thereby conceding gaps in their case. Such evidence was in their possession at the time of trial, and allowing it would amount to a second bite at the cherry and piecemeal litigation, undermining finality.

p. 2

Legal principles established

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  • A court becomes functus officio upon issuance of judgment; it may review the judgment but cannot reopen it for the taking of further material evidence
  • Review is a serious and reluctant remedy available only for glaring omission, patent mistake or like grave error, not for rehearing old arguments

Court orders

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  1. 1.The plaintiffs' application for review dated 17th March 2025 is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent power of review under Order 45 of the Civil Procedure Rules

Relief refused

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Review of the judgment of 25th November 2022 and further orders as necessary for the ends of justice

Review lies only for glaring omission, patent mistake or grave error; the plaintiffs conceded there is no error on the face of the record and were in fact seeking to adduce additional evidence to fill evidential gaps, which the functus officio doctrine forbids

p. 3

Costs

Dismissed with costs (costs to the defendants)

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.

As they have conceded that there is no error on the face of the record in the judgment or proceedings, their application for review under Order 45 CPR lacks merit and it is hereby dismissed with costs.
p. 3Final orders - dismissal of review application
The court became functus oficio upon issuance of judgment and could only review the judgment but not reopen it for the taking of further material evidence as proposed by the plaintifis.
p. 2Functus officio after judgment
A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
p. 2Limits of review
It is evident that they are now seeking to close the evidential gaps that they left when they were prosecuting their case which amounts to litigation in piecemeal.
p. 2Piecemeal litigation

Issues in the judgment

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minor

Inconsistent dates for the underlying judgment - paragraph 1 says it was delivered on 25th November 2022 while paragraph 2 says the judgment is dated 21st November 2022

minor

Delivery date stated as 13th May 2026, more than three years after the review application of 17th March 2025 - possibly a typographical error for 2025

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, "Wandary & 104 others v Bharmaz & another (Environment and Land Case E019 of 2021) [2026] KEELC 2899 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2899/eng@2026-05-13

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