Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)

2. The application is premised on the grounds on the face thereof and supported by the afidavit of Dennis Njagi, the 1st Defendant/Applicant herein on his own behalf and on behalf of the 2nd and 3rd Defendants/Applicants. 3. He deponed that the Respondents herein, as Plaintifis, filed an Amended Plaint dated 20th January, 2015 seeking, among other reliefs, declarations that they are entitled to exclusive and vacant possession and ownership rights over Nairobi/Block 79/787, the suit property herein, permanent injunction restraining them from trespassing upon or interfering with the property, police protection, general damages, mesne profits, and costs. 4. It was deposed that the suit proceeded to hearing in their absence as Defendants and was subsequently determined by a judgment delivered on 24th September, 2020. In the said judgment, the court found in favour of the Plaintifis/Respondents, declared them entitled to exclusive possession of the suit property, and ordered the Applicants to vacate and hand over vacant possession thereof. 5. According to Mr Njagi, on 26th November, 2025, it came to his attention that on 12th November, 2025, the Ethics Anti-Corruption Commission filed a suit in the Environment and Land Court at Milimani Law Courts at Nairobi being ELC No. E574 of 2025 Ethics & Anti-Corruption & Commission v Olerai Investments Limited & 3 Others and that the suit relates to the suit property herein- Nairobi/ Block 79/787. 6. It was deposed that in its pleadings, the Ethics & Anti-Corruption Commission states as follows:On 23rd February, 1994, the 4th Defendant issued a letter of allotment to one Simon K. Rono and for the suit property measuring 0.2134 Ha for a term of 99years from 1st March, 1994. There is no record of the Part Development Plan preceding the letter of allotment nor is there evidence that the land parcel was surveyed prior to the issuance of the letter of allotment.On 12th April, 1994, the said Simeon K. Rono applied to the Commissioner of Lands for change of user of the suit property from nursery school to residential user.On 19th October, 1994, the Director of City Planning informed the Commissioner of Lands that the Nairobi City Council Town Planning Committee at its meeting held on 14th October, 1994, approved the change of user from nursery school to residential on the suit property subject to submission of building plans and building within two years and payment of rates and rent.On 3rd November, 1994, the said Simeon K. Rono applied to the Commissioner of Lands for consent to transfer the suit property. At the time of this Application, the said Simeon K. Rono had only the letter of allotment and no title documents.On 11th November, 1994, the Commissioner of Lands consented to the transfer. Thereafter, Simeon K. Rono transferred the suit property to Olerai Investments Limited at a consideration of Kshs. 850,000.00 whereupon a lease was issued to the Company on 15th December, 1994 and registered in the name of Olerai Investments Limited on 16th December, 1994.On 21st October, 1997, Ms. Jane Wambui Ngeru informed the Nairobi City Council that they were unable to fulfil the terms for change of user from nursery school to residential for the suit property and that the user would revert to nursery school.On 16th December, 1997, the Nairobi City Council Town Planning Committee approved the recommendation of the Director of City Planning and Architecture to cancel the change of user from nursery school to residential on the suit property.On 22nd January, 1998, the Director of City Planning and Architecture informed the Commissioner of Lands that the Nairobi City Council Town Planning Committee at its meeting held on 16th December, 1997 cancelled the change of user from nursery school to residential on the suit property.On 29th January, 1998 the Commissioner of Lands sought comments from the Director of Surveys and Director of Physical Planning in respect of the said reversion of change of user over the suit property.On 18th June, 2009 Olerai Investments Limited applied for consent to transfer the suit property to Ms. Jane Wambui Ngeru and Scholastica Waithera Kamau.On 31st July, 2009 a transfer was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 2

page 2 of 11

registered in favor of Ms. Jane Wambui Ngeru and Ms. Scholastica Waithera Kamau at a consideration fee of Kshs. 4,200,000.00 and a Certificate of Lease issued on the same date.The Commission seek amongst others for a declaration that land parcel no. Nairobi/Block79/787 is public land. 7. According to the Defendants/Applicants, the Ethics and Anti-Corruption Commission conducted investigations into the suit property and established that the Plaintifis/Respondents acquired it through fraudulent and illegal means. 8. He contended that these findings cast doubt on the legitimacy of the Plaintifis’/Respondents’ title and constitute new and important evidence which was not within their knowledge, and could not with reasonable diligence have been obtained, at the time of the hearing. This information, he urged, warrants review of the judgment delivered on 24th September, 2020 by this court. 9. The Plaintifis/Respondents filed grounds of opposition dated 18th February, 2026 contending that the application is incompetent, misconceived and an abuse of the court process. They argued that the issues raised therein had previously been the subject of a notice of motion dated 13th April, 2023, which was heard and dismissed with costs on 20th December 2023. Consequently, the present application is barred by the doctrines of res judicata and functus oficio. 10. They further asserted that the application is a disguised attempt to reopen and review the judgment delivered on 24th September, 2020. According to them, the allegations that the suit property was unlawfully acquired was raised and determined in the earlier application and cannot be relitigated under the guise of fresh proceedings. They contended that the Applicants are acting in concert with the Ethics and Anti-Corruption Commission, which has since filed Milimani ELC Case No. E574 of 2025, with the objective of indirectly challenging a judgment that was never appealed against. 11. The Plaintifis/Respondents averred that the application ofiends the settled principle that a court of coordinate jurisdiction cannot sit on appeal over, review or reopen the final decision of another court of equal jurisdiction. Reliance was placed on Kenya Hotel Properties Limited vs Attorney General & 5 Others [2022] KESC 62 (KLR), wherein the Supreme Court reafirmed that courts cannot arrogate unto themselves jurisdiction to revisit or overturn final decisions rendered by courts of concurrent jurisdiction. 12. It was further contended that the Respondents had, during the trial, established that they were bona fide purchasers for value without notice, having acquired L.R. No. Nairobi/Block 79/781 from Olerai Investments Limited, the registered proprietor holding a 99-year lease from 1st January, 1994. According to the Respondents, the evidence now relied upon by the Applicants is neither new nor previously unavailable, as the same documents had been produced in the original proceedings and formed part of the evidence considered by the trial court. 13. The Respondents maintained that the allegations advanced by the Applicants and the Ethics and AntiCorruption Commission regarding the root of title merely revisit issues that were already canvassed before the court. 14. They argued that the application is founded on an erroneous understanding of land law and the repealed Government Lands Act, and on the mistaken assumption that the Ethics and AntiCorruption Commission can challenge a historical alienation of government land that had already culminated in the issuance of title. In the circumstances, the Respondents urged the court to find that the application is frivolous, vexatious and a blatant abuse of the court process, and to dismiss it with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 3

page 3 of 11

15. The Respondents also filed a notice of preliminary objection dated 18th February, 2026 contending that the application is incompetent and ought to be struck out in limine. They argued that the same is barred by the doctrines of functus oficio and res judicata, the court having previously heard and determined a similar application dated 13th April 2023, which was dismissed with costs on 20th December 2023. Consequently, they maintained that this court lacks jurisdiction to entertain the application and urged that it be dismissed with costs. 16. The Plaintifis/Respondents, through the 1st Respondent, also filed a replying afidavit dated 22nd May, 2026. She deponed that the Applicants never appealed against the judgment delivered on 24th September, 2020, nor the ruling delivered on 20th December, 2023; that the judgment determined all issues in controversy between the parties and, critically, held that the Plaintifis/Respondents are bona fide purchasers for value of the suit property L.R No. Nairobi/Block 79/781 without any notice of encumbrances and that the Respondents hold a valid title to the same. 17. She deponed that, as advised by Counsel, the Applicants are engaging in forum shopping in an attempt to obtain orders that will efiectively overturn the judgment and ruling already rendered in the matter. According to her, such a course is legally impermissible. 18. With respect to the pleadings in Milimani ELC No. E574 of 2025; Ethics and Anti-Corruption Commission vs Olerai Investments Ltd & Others, she explained that the Applicants have merely repackaged old allegations and old documents through the involvement of the Ethics and AntiCorruption Commission in an attempt to create the false impression that fresh evidence has emerged. 19. According to Ms Ngeru, the root of the Plaintifis’/Respondents' title was fully disclosed during the hearing of this suit and traces back to an allocation made under the repealed Government Lands Act to Simeon K. Rono and subsequently transferred to Olerai Investments Limited before transfer to the Respondents. Despite being fully aware of the said chain of title and despite participating fully in the proceedings culminating in the Judgment of 24th September 2020, the Applicants elected not to appeal the Judgment. 20. She explained that that the filing of the present application more than five years after the Judgment and after dismissal of the earlier review application is calculated solely to deny the respondents the fruits of a lawful and final judgment. 21. Further, she deponed that the Applicants had deliberately failed to disclose material facts and documents relevant to the determination of the present application. In particular, they omitted to place before the court the ruling delivered on 20th December, 2023, their earlier application dated 13th April, 2023, the afidavits filed in opposition thereto, and the afidavit sworn by Dennis Njagi on 11th October 2013. 22. She asserted, relying on the decision in John Muritu Kigwe & Another vs Agip (K) Ltd Nairobi HCCC No. 2382 of 1999 that a party seeking the court's discretion is under a duty to make full and frank disclosure of all material facts and that materiality is determined by the court, not by the Applicant. In this instance, she stated, the omission was deliberate and calculated to conceal from the court the fact that the issues now being raised had previously been canvassed and determined. Submissions 23. The Applicants filed submissions dated 25th May 2026 in support of their motion and in opposition to the preliminary objection. Counsel submitted that the doctrine of functus oficio generally bars a court from revisiting a matter once it has delivered a final judgment, except where the law expressly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 4

page 4 of 11

permits it. Relying on Kabansora Millers Ltd vs Nyangena (Civil Appeal E665 of 2022) [2025] KEНС 4754 (KLR) (Civ) (27 March, 2025) (Ruling), it was submitted that a court may reopen a matter where specific statutory provisions provide for review. Consequently, the court is not functus oficio. 24. As regards res judicata, it was submitted that for the same to apply, all the elements set out under Section 7 of the Civil Procedure Act must be satisfied conjunctively, as afirmed by the Court of Appeal in the case of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] e KLR.While conceding that the present and previous applications involve the same parties litigating under the same title and that the earlier application was determined by a court of competent jurisdiction, counsel argued that the issues raised in the two applications are materially difierent. 25. It was submitted that the application dated 13th April, 2023 sought leave for change of advocates, stay of execution, setting aside of the ex parte judgment, leave to file a defence out of time, and joinder of a residents’ association. In contrast, the present application seeks review of the judgment on the basis of discovery of new and important evidence. The matters in issue are neither directly nor substantially the same and that the doctrine of res judicata is inapplicable. 26. Cited in support was Chepngok vs Metto & Another (Sued as the Administrators of the Estate of the late Elizabeth Jepchoge Sirma) (Environment and Land Appeal E014 of 2024) [2025] KEELC 314 (KLR) (29 January 2025) (Ruling). 27. Counsel submitted that Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 5 of the Civil Procedure Rules, confer upon the court jurisdiction to review its judgments and orders in limited circumstances. Counsel further cited Wilson njiri gikonyo vs Ruth Mary Wangui & 2 others [2022] eKLR - Environment and Land Case 12 “B” of 2021 where the court held that an applicant seeking review must demonstrate either the discovery of new and important matter or evidence which was not within his knowledge despite due diligence, an error apparent on the face of the record, or some other suficient reason warranting review, and that the application must be made without unreasonable delay. 28. On the question of discovery of new evidence, counsel submitted that the Applicants had recently become aware of investigations conducted by the Ethics and Anti-Corruption Commission (EACC), which revealed that the suit property had been acquired fraudulently by the Respondents. According to counsel, the investigations unearthed information concerning the root of title that was not previously available to the Applicants despite the exercise of due diligence. 29. It was argued that this evidence constitutes new and important material capable of fundamentally afiecting the outcome of the case and was therefore suficient to warrant review of the judgment. Reliance was placed on Rose Kaiza vs Angelo Mpanjuiza [2009] eKLR, as cited in Turbo Highway Eldoret Limited vs Synergy Industrial Credit Limited [2016] eKLR, for the proposition that review may be granted upon discovery of any new and important matter that was not within the applicant's knowledge at the time the decree was passed. 30. Counsel further submitted that the newly discovered evidence demonstrated that the Respondents’ certificate of lease and the root title from which it emanated was tainted by fraud, thereby casting doubt on the validity of the Respondents’ ownership. In that regard, reliance was placed on Evan Bwire vs Andrew Aginda, as cited with approval in Stephen Githuka Kimani vs Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR. 31. With regard to delay, counsel submitted that the application had been filed without unreasonable delay. It was argued that the Applicants only became aware on 26th November 2025 that the EACC had instituted ELC No. E574 of 2025, Ethics and Anti-Corruption Commission vs Olerai Investments https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 5

page 5 of 11

Limited & 3 Others, concerning the suit property. Upon reviewing the pleadings in that matter and discovering the alleged irregularities afiecting the title, the Applicants promptly instructed counsel to file the present application. 32. Counsel maintained that the timeliness for an application for review is assessed from the date the new evidence comes to the applicant's knowledge rather than from the date of delivery of judgment. Reliance was again placed on Wilson Njiri Gikonyo (supra), where the court observed that the law does not prescribe a specific statutory period within which an application for review must be filed. 33. The Respondents filed written submissions dated 21st May, 2026. Counsel submitted, at the outset, that the court lacks jurisdiction to entertain the application for the reasons advanced in their preliminary objection. 34. On a without prejudice basis, it was submitted that the application is fatally defective for material non-disclosure. It was argued that the Applicants failed to place before the court crucial facts and documents relating to previous proceedings concerning the same issues disentitling them to the reliefs sought. Reliance was placed on John Muritu Kigwe & Another vs Agip (K) Ltd, Nairobi High Court Commercial Division Civil Suit No. 2382 of 1999, and Uhuru Highway Development Limited -vCentral Bank of Kenya & 2 others [1995]eKLR. 35. It was further submitted that the application constitutes an abuse of the court process. According to counsel, the matters now raised were previously considered and determined by both Justice Okong’o and Justice Omollo, and that the Applicants neither appealed nor successfully challenged those decisions. Counsel argued that the present motion is a disguised attempt to reopen issues that have already been conclusively determined. 36. In support of that position, reliance was placed on the observations of I.H. Jacob in Current Legal Problems, to the efiect that the court must prevent its processes from being misused through frivolous, vexatious or oppressive litigation. 37. Counsel also contended that the application is barred by the doctrine of functus oficio. Reliance was placed on the decision of the Supreme Court in Odinga vs Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013 (Consolidated)) [2013] KESC 8 (KLR) (24 October 2013) (Ruling). It was submitted that the judgment delivered in this matter is final and that any challenge thereto ought to have been pursued through the appellate process rather than by way of the present application. 38. In conclusion, counsel urged the court to dismiss the application with costs. It was further submitted that the Applicants’ advocates should personally bear those costs on the basis that the application was brought without justification and amounts to an improper attempt to relitigate matters that have already been conclusively determined. Analysis and Determination 39. Having considered the pleadings and submissions, the issues that arise for determination are: i. Whether the present motion is competent? And if so? ii. Whether the Applicants have met the threshold for the grant of review sought? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 6

page 6 of 11

40. Vide their responses, the Respondents assert that the present motion is incompetent. They assert that the motion is res judicata and the court is functus. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, which provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”. 41. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus: “ …The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied]. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 42. The Respondents assert that the present application is barred by the doctrine of res judicata and subsequently functus on account of the ruling delivered by this court [Hon. Justice Omollo] on 20th December 2023, wherein the court dismissed the Applicants’ notice of motion dated 13th April 2023. 43. This court has carefully considered the same vis the present application. In the earlier motion, the Applicants sought leave for a new firm of advocates to come on record, stay of execution, setting aside of the judgment, leave to file a defence out of time, and an order that the suit be heard afresh. The gravamen of that application was that the Applicants had been let down by their advocates, had not been notified of the progress of the proceedings, and had consequently been denied an opportunity to defend the suit. 44. Upon considering those grounds, the court found that the Applicants had been aware of the proceedings, had participated therein through counsel, had failed to diligently follow up the matter, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 7

page 7 of 11

and had not demonstrated suficient cause to warrant setting aside the judgment. The application was consequently dismissed with costs. 45. The present application, on the other hand, is expressly brought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules seeking review of the judgment on the basis of alleged discovery of new and important evidence arising from investigations undertaken by the Ethics and Anti-Corruption Commission and the subsequent filing of Milimani ELC No. E574 of 2025. 46. The central question raised is therefore whether the matters relied upon constitute new and important evidence warranting review of the judgment. That issue was neither raised nor determined in the application dated 13th April 2023. Indeed, it could not have been noting that the referenced case is a 2025 case. It is apparent that the two motions are distinct and invoke difierent jurisdictions of the court. 47. Consequently, while the court finds that the present application is not barred by the doctrines of res judicata and the court is as such not functus oficio. 48. The next issue is whether the Applicants have met the threshold for the grant of review sought. The law governing the framework of review is set out in Section 80 of the Civil Procedure Act, Cap 21 and Order 45, Rule 1(1) of the Civil Procedure Rules. Section 80 of the Act provides as follows: “ 80. 49. Any person who considers himself aggrieved(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgment to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” Whereas Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 provides as follows: “ Rule 1 (1) Any person considering himself aggrieved 50. (a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.” Discussing this, the Court of Appeal in Benjoh Amalgamated Limited & another vs Kenya Commercial Bank Limited [2014] eKLR observed that: “ In the High court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 8

page 8 of 11

and important matter or mistake or error apparent on the face of the record or any other suficient reason but section 80 gives the High Court greater amplitude for review”. 51. Vide the Amended Plaint dated 20th January, 2015, the Respondents, as Plaintifis, averred that they were, at all material times, and remain, the registered proprietors of the leasehold interest in the suit property as tenants in common in equal shares. They contended that they acquired the property from Olerai Investment Limited on or about 3rd March, 2008 at a consideration of Kshs. 4,200,000/= for the purpose of constructing a church and a nursery school. 52. Consequently, they asserted that they were entitled to exclusive possession of the suit property, including the right to regulate and control access thereto. The Applicants, as Defendants, neither filed a defence nor adduced evidence to prove their interest, if any, in the suit property. Vide its judgment entered on 24th September, 2024, the court found that the Respondents had established their case to the requisite standard and granted it the reliefs sought. The present application seeks a review of that determination. 53. The Applicants’ case is that they have discovered new and important evidence arising from investigations conducted by the Ethics and Anti-Corruption Commission and the subsequent filing of ELC No. E574 of 2025 concerning the suit property. According to them, the investigations disclosed alleged irregularities and fraud in the allocation and transfer of the suit property, thereby casting doubt on the legitimacy of the Respondents’ title. 54. They contend that this information was not within their knowledge and could not, with the exercise of due diligence, have been obtained at the time the judgment was delivered. On that basis, they urge the court to review and set aside the judgment of 24th September 2020. 55. The Respondents, on the other hand, maintain that the application is an abuse of the court process and an attempt to relitigate matters that have already been conclusively determined. Their position is that the alleged new evidence consists of unproven allegations contained in a subsequently filed suit and does not meet the threshold for review. 56. They further contend that the Applicants neither challenged the Respondents’ title during the trial nor appealed against the judgment, and cannot now use the review jurisdiction to reopen issues that were or ought to have been raised in the original proceedings. Consequently, the Respondents urge the court to dismiss the application. 57. Turning to the prerequisites for review, the court will first address whether the application has been brought without unreasonable delay, this being a fundamental requirement under Order 45 Rule 1 of the Civil Procedure Rules. This position was underscored by the Court of Appeal in Afapack Enterprises Limited vs Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Suchila Anatrai Raval) [2018] eKLR, which stated thus: “ It is also an important requirement that the application for review should be made without unreasonable delay….” 58. What constitutes unreasonable delay is a question of fact to be determined in the circumstances of each case. In the present matter, the judgment sought to be reviewed was delivered on 24th September, 2020, whereas the present application was filed on 17th December 2025, a period of more than five years later. Prima facie, that delay is inordinate and therefore calls for a satisfactory explanation. 59. The Applicants contend that they only became aware on 26th November 2025 of the filing of Milimani ELC No. E574 of 2025 by the Ethics and Anti-Corruption Commission concerning the suit property https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 9

page 9 of 11

and that they moved the court promptly thereafter. While that explanation may account for the period between the alleged discovery and the filing of the present application, it does not satisfactorily explain the delay from the date of judgment to the date of the motion. 60. The judgment sought to be reviewed was delivered on 24th September 2020, and the Applicants have not demonstrated what steps, if any, they took in the intervening five-year period to challenge the judgment or ascertain whether any facts existed that would warrant reopening the matter. 61. 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. In the circumstances, and considering the lapse of more than five years between the delivery of judgment and the filing of the present application, the court is not persuaded that the delay has been satisfactorily explained. 62. Nonetheless, the court will move on to the next ambit for purposes of completion. As aforesaid, the Applicants’ plea for review is based on the grounds of discovery of new and important evidence. Speaking to this limb, the court in Nasibwa Wakenya Mosesv University of Nairobi & another [2019] eKLR, stated as follows: “ A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifierence. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.” 63. Similarly, the court in Charles Kimaita Mwithimbu & another vs Edward Mutua M’ Mwithiga [2016] eKLR stated as follows: “ ….It is not enough to merely state that there has been a discovery of new and important matter or evidence. You must show that, at the time of the decree, the new and important matter or evidence which has now been discovered, was not within your knowledge or could not have been produced even after exercising due diligence at the time of the decree. This strict proof is a requirement of the law. See the proviso to Order 45 Rule 3 (2) of the Civil Procedure Rules…This threshold is meant to prevent attempt by unscrupulous parties to reopen lost cases with aim of mending the weak areas which were exactly the Achilles of the lost case.” 64. The court has applied the foregoing principles to the present case. First, it is noteworthy that throughout the proceedings culminating in the judgment of 24th September, 2020, the Applicants neither filed a defence nor adduced evidence challenging the Respondents' title, the root thereof, or their entitlement to the suit property. The judgment was rendered on the basis of the evidence presented by the Respondents, which remained uncontroverted. 65. Having elected not to place any evidence before the court at the trial, the Applicants cannot subsequently invoke the review jurisdiction as a vehicle for introducing matters which they failed to investigate, plead, or prove in the first instance. Review is not intended to afiord a litigant a second opportunity to litigate issues that could and ought to have been raised during the hearing. 66. Secondly, the court is mindful that the jurisdiction of review is narrow and exceptional. It is not an appellate jurisdiction and cannot be invoked merely because a party has subsequently identified https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 10

page 10 of 11

a difierent basis upon which to challenge a judgment. To permit such an approach would blur the distinction between review and appeal and undermine the principle of finality in litigation. 67. The material relied upon by the Applicants consists principally of pleadings filed by the Ethics and Anti-Corruption Commission in Milimani ELC No. E574 of 2025 and the allegations contained therein concerning the historical allocation and transfer of the suit property. Those pleadings do not constitute evidence, let alone conclusive proof of fraud, illegality, or invalidity of title. They merely contain allegations whose veracity remains to be tested and determined in separate proceedings. 68. More fundamentally, 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. The filing of that suit is a subsequent development occurring years after the judgment sought to be reviewed. It neither establishes the truth of the allegations made therein nor transforms those allegations into evidence capable of impeaching a subsisting judgment. 69. Were the court to hold otherwise, every subsequent claim, investigation, or suit commenced by a third party touching on a subject matter already determined by a competent court would provide a basis for review. Such an approach would undermine the finality of litigation and expose concluded judgments to perpetual challenge based on unproven allegations contained in later proceedings. 70. In the court's view, what has emerged is not new evidence within the contemplation of Order 45 Rule 1, but rather, a fresh challenge by a third party to the Respondents' title. Whether that challenge ultimately succeeds or fails remains a matter for determination in the pending proceedings. 71. In the end the Notice of Motion dated 17th December, 2025 is found to be unmerited and is hereby dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 9TH DAY OF JULY, 2026. O. A. ANGOTE JUDGE In the presence of: Mr. Nduta Kuria for Dr. Kamau Kuria (SC) for the Respondent Ms Mumbi for 1st – 3rd Defendant Court Assistant: Tracy 1 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09 11

page 11 of 11