Green Valley Enterprises Ltd v Mpeshe & 4 others (Environment & Land Case 601 of 2013) [2024] KEELC 4651 (KLR)
The bottom line
#The Environment and Land Court dismissed a two-year-late request to review a land judgment, confirming that unhappy parties must appeal, not seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on res judicata was properly before the court
The court declined to strike out the application on the PO but determined res judicata as a ground opposing the review, since the ruling and judgment were in the same file
While res judicata is best raised by notice of motion with pleadings annexed because it may involve disputed facts, here the judgment and ruling sought to be relied on were part of the same court record, so the court could read them itself without probing evidence.
Whether the survey report (TM1) constituted new and important matter justifying review
No - the survey issue was litigated since 2014, the defence had opportunity to produce their own survey evidence at trial, and no due-diligence hindrance was explained
The trial judge had heard the County Surveyor and Land Registrar and made a decisional finding that the suit title was demarcated on the ground. The Defendants knew of the survey issue from the 2014 ruling and had opportunity to produce alternative survey evidence during the defence hearing; dissatisfaction with that finding is a matter for appeal, not review.
Whether the application was brought without undue delay
No - filed approximately two years and three months after the judgment with no explanation, amounting to laches
Order 45 requires an application for review to be made without undue delay. The judgment was delivered on 24th June 2021 and the application filed on 1st November 2023; neither the grounds nor the supporting affidavit explained the delay, so the court declined to exercise its discretion in the Applicants' favour.
Whether the survey document TM1 met the evidentiary threshold
It did not, failing sections 64-69 of the Evidence Act
The document was an unauthenticated survey report allegedly produced by a private surveyor without the Respondent's involvement, and did not meet the evidentiary threshold under sections 64-69 of the Evidence Act, so the court could not make boundary findings on it.
Legal principles established
#- A party dissatisfied with a judge's finding on evidence should appeal rather than seek review; a court will not sit on appeal over its own finding
- Review on grounds of newly discovered evidence requires explanation that the evidence could not be obtained despite due diligence
- Res judicata may be determined by the court from its own record notwithstanding that it is raised in a preliminary objection refuted on facts
Court orders
#- 1.The notice of motion dated 1st November 2023 seeking review of the judgment delivered on 24th June 2021 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimeu v Kenya Pipeline Company Ltd & another (Environment and Land Petition 9 of 2019 & Petition 8 & 12 of 2019 (Consolidated)) [2025] KEELC 5239 (KLR)[2025] KEELC 5239 (KLR)11 Jul 2025
- Nyongesa v County Government of Nakuru & another (Environment & Land Case 66 of 2022) [2024] KEELC 5801 (KLR)[2024] KEELC 5801 (KLR)9 Aug 2024
Cite this brief
#Cite this brief
Caselaw, "Green Valley Enterprises Ltd v Mpeshe & 4 others (Environment & Land Case 601 of 2013) [2024] KEELC 4651 (KLR)", Case Analysis (2024). Nairobi ELC 601 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4651/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.