Bartilol & another v Ngomat (Environment & Land Case 39 of 2015) [2025] KEELC 1331 (KLR)
The bottom line
#A Kenyan court refused to reopen a 2017 land case, ruling a buyer who never claimed his refund at trial cannot raise it seven years later.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for review is res judicata / whether the refund claim could be raised on review
The refund claim was not a new matter; it was within the applicant's knowledge at trial and ought to have been pleaded or raised then, so reopening it is barred and review is unavailable
The sale agreement's clause 6 obliged the vendor to obtain land control board consent, so the Land Control Act was within the parties' reasonable knowledge. The applicant, who was ably represented, knew money had been paid as consideration and that a refund would follow a void sale. Res judicata promotes finality; a party must bring forward the whole case and cannot litigate by installments or rely on matters forgone or overlooked through negligence.
Whether the applicant established a basis for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
No review ground was established: there was no discovery of new and important matter, no error apparent on the face of the record, and the application was filed almost seven years after the judgment without explanation
Review requires discovery of new and important matter or evidence not obtainable with due diligence, a mistake or error apparent on the face of the record, or other sufficient reason, and must be brought without unreasonable delay. The Land Control Act refund provision predates the suit; the 'new matter' was not new. The delay from 31/7/2017 to 23/2/2024 was unexplained, independently disqualifying the application.
Whether the Land Control Act was applicable to the transaction
Yes; the applicability of the Land Control Act was within the reasonable knowledge of the parties because the sale agreement itself provided for the vendor to obtain land control board consent
Clause 6 of the rescinded sale agreement required the vendor to execute all necessary land control board consents, showing the parties knew the transaction was controlled. The applicant's assertion that the issue was new is reading the law in hindsight; ignorance of the law is no defence. The refund provision of Section 7 of the Land Control Act was therefore available and ought to have been invoked at trial.
Legal principles established
#- A party in a case is expected to bring forward his whole case and will not, in the absence of exceptional circumstances, be permitted to reopen it in respect of a matter that might have been brought forward, out of negligence, inadvertence or accident
- The mere discovery of new or important matter or evidence does not amount to a sufficient ground for review; the applicant must show the matter was not within his knowledge and could not with due diligence have been produced earlier
- A party who chooses to forgo part of his claim cannot later be heard to complain or litigate by installments
- An application for review must be made without unreasonable delay
Court orders
#- 1.The application dated 20/4/2023 seeking review of the judgment delivered on 31/7/2017 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Sections 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court that passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bartilol & another v Ngomat (Environment & Land Case 39 of 2015) [2025] KEELC 1331 (KLR)", Case Analysis (2025). ELC Case No. 37 of 2015 (Review Application dated 20/4/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1331/eng@2025-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.