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ELCDismissedELC Case No. 37 of 2015 (Review Application dated 20/4/2023)· [2025] KEELC 1331 (KLR)

Bartilol & another v Ngomat (Environment & Land Case 39 of 2015) [2025] KEELC 1331 (KLR)

Environment and Land Court
19 March 2025
2,212 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a notice of motion dated 20/4/2023, the applicant sought review of the judgment delivered on 31/7/2017 in consolidated ELC Case No. 37 of 2015 (his suit) and ELC Case No. 39 of 2015 (the respondents' suit as legal representatives of the late John Kiptum Bartilol), together with an order that the respondents refund Kshs. 2,010,000/= with interest at court rate from 27/12/2005, being the purchase price paid under a sale agreement over Plot No. 5 Ndalala Settlement Scheme which the court had found void for lack of a confirmed grant and land board consent. The applicant argued he had discovered a new matter under Section 7 of the Land Control Act entitling him to a refund, that the issue was never pleaded or determined, and that refusal would unjustly enrich the respondents. The respondents opposed, contending the refund was never claimed in the pleadings or counterclaim, no evidence was led on it, and the application was res judicata and an abuse of process. The court framed four issues and held that the Land Control Act's applicability was within the parties' knowledge, since clause 6 of the sale agreement required land control board consent; the refund claim was not a new matter but something the diligent applicant ought to have pleaded at trial; review cannot be founded on the mere discovery of material that was within an applicant's knowledge; and the application, filed almost seven years after the judgment, was made without the unreasonable-delay threshold. Relying on the res judicata doctrine and review jurisprudence, the court dismissed the application with no order as to costs.

Key legal issues

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01

Whether the application for review is res judicata / whether the refund claim could be raised on review

Holding

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

Reasoning

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.

p. 4
02

Whether the applicant established a basis for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

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

Reasoning

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.

p. 4
03

Whether the Land Control Act was applicable to the transaction

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 20/4/2023 seeking review of the judgment delivered on 31/7/2017 is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.