Mwaniki v (Secretary) & 3 others () Sued as the officials of Kibarage Slums Association); Kenya Railways Corporation & another (Intended Interested Party) (Environment and Land Case 91 of 2020) [2025] KEELC 7134 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to reopen a 2021 land judgment, ruling that three-year delay and late-joining parties cannot revive a concluded case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should review the judgment delivered on 16th September 2021
- 2.Whether the 1st and 2nd Intended Interested Parties should be joined in this suit post-judgment
Key legal issues
#Whether the court has jurisdiction to review its judgment where a notice of appeal was filed
The court has jurisdiction since no Record of Appeal was filed in the Court of Appeal
The Plaintiff argued the Defendants had invoked the Court of Appeal's jurisdiction by filing a Notice and Memorandum of Appeal, ousting review. Relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd as cited in HA v LB, and Multichoice Kenya Ltd v Wananchi Group, the court held that a notice of appeal does not institute an appeal; an appeal is only instituted when the record of appeal is lodged. Since no Record of Appeal was proved, review jurisdiction remained available.
Whether the Defendants met the threshold for review on discovery of new evidence
No - the alleged new survey evidence did not warrant review and the application was brought after inordinate delay
Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, review requires discovery of new and important matter not obtainable with due diligence, made without unreasonable delay. The survey report dated December 2022 was obtained post-judgment, yet the application was filed over three years after judgment. The Defendants also inconsistently claimed the land was public while having counterclaimed title by adverse possession, which is unavailable over public land. No sufficient cause for review was shown.
Whether intended interested parties can be joined post-judgment
No - joinder is not available once proceedings are concluded
Relying on Republic v Nairobi City County Council Assembly, parties seeking to be enjoined must apply before determination and demonstrate a direct interest and necessity of their presence. The suit had been concluded over three years earlier; the intended interested parties did not demonstrate their interest or how their presence would enable the court to reopen and determine the matter. Joinder was therefore untimely, irregular and unnecessary.
Legal principles established
#- The High Court retains jurisdiction to entertain an application for review despite the lodging of a notice of appeal, as an appeal is not instituted until the record of appeal is lodged
- An application for review must be made without unreasonable delay
- Joinder of parties is not available after determination of a suit
Court orders
#- 1.Dismissal of the Defendants' Notice of Motion dated 20th March 2025
- 2.Costs of the application to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)
Relief refused
#Review/vacation/setting aside of the judgment of 16th September 2021
Defendants failed to establish the parameters for review; application made after inordinate delay of over three years; no sufficient cause shown
Joinder of Kenya Railways Corporation and National Land Commission as interested parties
Suit concluded more than three years ago; intended interested parties did not demonstrate their interest or necessity of their presence
Stay of execution of any decree stemming from the 16th September 2021 judgment
Application dismissed; prayers appeared spent or dependent on review which was declined
Costs
Application dismissed with costs to the Plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I hence find that they have not established the parameters for review and the delay in bringing the instant application is inordinate. I hence decline to grant the orders as sought.
In the foregoing, I find the instant Notice of Motion application unmerited and will dismiss it with costs.
Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review.
if the case has already been concluded, there is no ongoing process to join and therefore the timely application for orders of joinder would still not be available.
Such evidence must be credible, material to the case, and not merely confirmatory of what was already presented.
it is trite that one cannot seek the said orders in respect to public land
Issues in the judgment
#The judgment alternates between 'December 2022' and 'February 2023' as the date of the survey report relied on as new evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki v (Secretary) & 3 others () Sued as the officials of Kibarage Slums Association); Kenya Railways Corporation & another (Intended Interested Party) (Environment and Land Case 91 of 2020) [2025] KEELC 7134 (KLR)", Case Analysis (2025). Notice of Motion dated 20th March 2025 (in the suit judgment delivered 16th September 2021 before Justice BM Eboso). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7134/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.