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ELCDismissedNot stated in the ruling (Notice of Motion dated 20/12/2024)· [2025] KEELC 3775 (KLR)

Mukhwana v Nzoia Sugar Company Limited & 10 others (Environment and Land Appeal 7 of 2019) [2025] KEELC 3775 (KLR)

Environment and Land Court
8 May 2025
ECE.C. Cherono
1,778 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Bungoma dismissed a review application, confirming you cannot revive a lost land case with evidence you could have produced at trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge) dismissed a Notice of Motion dated 20/12/2024 in which the Applicant sought review of the court's judgment delivered on 11/10/2024 in a land dispute over a road, together with an order to take additional evidence. The Applicant argued he had discovered new evidence: that his name was falsely included among attendees of a community meeting which resolved that a road pass through his land, that his complaints only emerged in 2024, and that a map dated September 1969 diminished the report of the land registrar and surveyor relied on at trial. The 1st Respondent, through Rita Mukhongo's replying affidavit, countered that the minutes showed the Applicant was absent, that the challenge to the registrar's report was baseless, and that no new evidence or error on the record had been demonstrated. The court set out the review jurisdiction under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, and adopted the principles in Ajit Kumar Rath v State of Orisa and the digest in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya. It held the case was one of negligence and lack of diligence at trial rather than discovery of new evidence, that the Applicant sought a second bite at the cherry, and that the minutes in fact concerned maintenance of an existing road. The application was dismissed with costs on 8 May 2025.

Key legal issues

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01

Threshold for review under Order 45 rule 1(b)

Holding

The Applicant failed to meet the threshold; the material relied on was within his knowledge and did not constitute new and important matter

Reasoning

The court applied section 80 of the Civil Procedure Act and Order 45 rule 1, adopting principles from Ajit Kumar Rath and the Apollo Mboya digest. It found the maps and meeting minutes were documents the Applicant, who initiated both suits, could have obtained earlier. The meeting minutes concerned maintenance of an existing road, not opening a new one, so the evidence did not affect the court's findings.

p. 4

Legal principles established

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  • In a review application based on discovery of new evidence, the applicant must show the evidence was not obtainable despite due diligence at trial
  • Review cannot be used as a second bite at the cherry or to re-open a case for re-evaluation

Court orders

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  1. 1.The Notice of Motion dated December 20, 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 78, 80
  • Civil Procedure RulesOrders 22 and 45 (Order 45 rule 1)

Cases cited (2)

  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

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, "Mukhwana v Nzoia Sugar Company Limited & 10 others (Environment and Land Appeal 7 of 2019) [2025] KEELC 3775 (KLR)", Case Analysis (2025). Not stated in the ruling (Notice of Motion dated 20/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3775/eng@2025-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.