Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed landowners' attempt to reopen a 2020 judgment, ruling that later corruption allegations and a five-year delay don't justify 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 present motion is competent (not barred by res judicata or functus officio)?
- 2.Whether the Applicants have met the threshold for the grant of review sought?
Key legal issues
#Whether the motion is barred by res judicata and functus officio given the earlier ruling of 20th December 2023
The present application is not barred; the two motions are distinct and invoke different jurisdictions of the court.
The earlier motion of 13th April 2023 sought leave for new advocates, stay of execution, setting aside of the ex parte judgment, leave to file a defence out of time and joinder, and was dismissed. The present motion is expressly brought under Section 80 CPA and Order 45 seeking review on the ground of newly discovered evidence arising from EACC investigations, an issue neither raised nor determined in the earlier application. The Section 7 res judicata elements are therefore not satisfied conjunctively.
Whether the application was brought without unreasonable delay
The delay of over five years between judgment (24th September 2020) and the application (17th December 2025) was inordinate and unsatisfactorily explained.
Awareness of the EACC suit in November 2025 may explain the period from discovery to filing, but not the five-year gap from judgment. The Applicants did not show what steps they took in the intervening period to challenge the judgment or ascertain facts warranting reopening. Review is exceptional and the law does not contemplate a litigant remaining inactive for years then reviving a concluded dispute.
Whether EACC investigations and pleadings in Milimani ELC No. E574 of 2025 constitute new and important evidence for review
No; the EACC pleadings are allegations, not evidence, and cannot impeach a subsisting judgment.
The material relied upon consists of pleadings filed by the EACC containing allegations about the historical allocation and transfer of the suit property. These do not constitute evidence, let alone conclusive proof of fraud or invalidity of title. Moreover, the Applicants filed no defence and adduced no evidence at trial; review cannot be used as a vehicle to introduce matters they failed to investigate or prove, nor to convert review into an appeal.
Legal principles established
#- The institution of a fresh suit by a third party (such as the EACC) years after judgment does not, by itself, amount to discovery of new and important matter or evidence warranting review.
- A litigant who elected not to adduce evidence at trial cannot use review to introduce matters they failed to investigate, plead or prove; review is not a second opportunity to litigate.
Court orders
#- 1.The Notice of Motion dated 17th December, 2025 is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, Cap 21; Order 45 Rules 1 and 5 and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Review and setting aside of the judgment delivered on 24th September, 2020
Application brought after inordinate, unexplained delay of over five years; the EACC pleadings are not new and important evidence but unproven allegations in a subsequent suit
Dismissal of the Plaintiffs' claim
No basis established for review of the judgment
Costs
The Notice of Motion dated 17th December, 2025 is dismissed with costs to the Plaintiffs/Respondents.
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.
In the end the Notice of Motion dated 17th December, 2025 is found to be unmerited and is hereby dismissed with costs.
The institution of a fresh suit by the Ethics and Anti-Corruption Commission in 2025 cannot, by itself, amount to the discovery of new and important matter or evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules.
Review is an exceptional remedy and the law does not contemplate that a litigant may remain inactive for years and thereafter seek to revive a concluded dispute.
Review is not intended to afford a litigant a second opportunity to litigate issues that could and ought to have been raised during the hearing.
It is apparent that the two motions are distinct and invoke different jurisdictions of the court.
Issues in the judgment
#Internal inconsistency in judgment date references - the judgment is dated 9th July 2026 but the affidavit is described as dated 22nd May, 2026 (after the submissions of 21st May 2026); more materially, the judgment under review is inconsistently dated.
Inconsistent suit property number - the Respondents' title is described in places as Nairobi/Block 79/781 while elsewhere as Nairobi/Block 79/787.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)", Case Analysis (2026). Notice of Motion dated 17th December, 2025 (in the main suit re Nairobi/Block 79/787). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.