Ngoge v Isanda & 2 others (Environment and Land Case 99 & 6 of 2016 (Consolidated)) [2025] KEELC 6921 (KLR)
The bottom line
#The Environment and Land Court dismissed landowners' attempt to reopen a lost case, ruling their 'new evidence' was obtainable during the trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the functus officio doctrine bars the application for review
It does not; review is a post-judgment process within the court's competence
The court explained that while functus officio embodies finality once a court renders its decision, the doctrine does not bar consequent, complementary or facilitative processes, and an application for review is expressly one of the proceedings a court may entertain after judgment.
Whether the filing of a Notice of Appeal renders a review application incompetent
No; adopting Multichoice Kenya, a mere Notice of Appeal does not bar review
The court noted conflicting Court of Appeal positions (Kisya Investments/Multipurpose versus Yani Haryanto/Multichoice) and held it was entitled to adopt either, choosing Multichoice, under which the predominant position is that the mere filing of a notice of appeal does not bar an application for review. The Plaintiff's objection on this ground was rejected.
Whether the alleged new and important evidence meets the threshold for review under Order 45
No; the material could have been obtained with reasonable diligence during trial
The legitimacy of the Plaintiff's title was the very premise of the Defendants' Counterclaim and was considered at trial. The documents now relied upon (list of plot owners, searches, letter to the Chief Land Registrar, Mary Ngechi's affidavit) were obtainable prior to or during the proceedings, and no medical evidence supported the claim of incapacity. The Supreme Court's Outa v Okello review jurisdiction was held distinct and inapplicable.
Legal principles established
#- An application for review is a matter the court is vested with jurisdiction to undertake after judgment; the functus officio doctrine does not bar it
- The filing of a Notice of Appeal does not preclude a party from seeking review, adopting the Multichoice Kenya position
- Review on discovery of new evidence requires strict proof that the evidence could not, with due diligence, have been obtained at trial
Court orders
#- 1.The Notice of Motion dated 25th June, 2024 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoge v Isanda & 2 others (Environment and Land Case 99 & 6 of 2016 (Consolidated)) [2025] KEELC 6921 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6921/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.