Wakhanu & 2 others v Wakhanu & another (Environment & Land Case 50 of 2018) [2025] KEELC 8 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the alleged new evidence of the applicants' father's dementia warranted review of the judgment
No review - the father died on 10th August 2007, before the suit was filed in 2011; the applicants entered appearance, filed a defence, did not dispute service, and gave no satisfactory explanation for failing to adduce the evidence at the hearing
The court applied the cautionary principle in D. J. Lowe & Company Limited v Banque Indosuez that review on fresh evidence requires proof that there was no remissness in adducing all possible evidence at the hearing. The applicants entered appearance and filed a defence through counsel, never disputed service of hearing notices, and never sought setting aside for want of service. The alleged dementia could only predate the father's 2007 death, so the evidence was available and simply not adduced. The lapse is not curable through review.
Whether delay of over two and a half years in filing the review application was excusable
The delay was unreasonable and not excused by the alleged illness of the applicants
Order 45 Rule 1 requires a review application to be made without unreasonable delay. Judgment was delivered on 27th July 2021 and the application was filed on 9th February 2024. The applicants' claim of illness was rejected because they had been served at all stages, including on the date of judgment, and had not explained why the alleged illness was never communicated to the court.
Whether adverse possession could be raised on review
Adverse possession is not a question of evidence and has no place in a review application
The court held that a claim of adverse possession is a substantive matter that ought to have been pleaded and determined at trial; any dissatisfaction with the trial outcome lies in an appeal, not review. Review is confined to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and cannot be used to introduce a new cause or defence.
Legal principles established
#- An application for review grounded on discovery of fresh evidence must be approached with great caution and cannot be used by a losing party to re-litigate or patch weaknesses in its case.
- A claim of adverse possession is a question of substantive law for the trial court and an appeal, not a ground for review.
- An application for review must be filed without unreasonable delay, and illness does not excuse delay where the applicant was duly served with hearing notices.
Court orders
#- 1.Notice of Motion dated 7th February 2024 is dismissed
- 2.No order as to costs, in view of the family relationship between the parties
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court which passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakhanu & 2 others v Wakhanu & another (Environment & Land Case 50 of 2018) [2025] KEELC 8 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Notice of Motion dated 7th February 2024 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.