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ELCDismissedNotice of Motion dated 20th March 2025 (in the suit judgment delivered 16th September 2021 before Justice BM Eboso)

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)

Environment and Land Court
15 October 2025
2,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendants, members of the Kibarage Slums Association, moved the court by Notice of Motion dated 20th March 2025 seeking review, vacation or setting aside of the judgment delivered on 16th September 2021 by Justice BM Eboso, which declared the Plaintiff the lawful proprietor of LR No. 209/9002/2 and 209/9002/3; joinder of Kenya Railways Corporation and the National Land Commission as interested parties; and a stay of execution. They relied on a survey report indicating the suit property encroaches on an old railway alignment and was never surrendered by Kenya Railways, contending the land is public. The Plaintiff opposed, arguing the Defendants had filed a Notice and Memorandum of Appeal thereby ousting review jurisdiction, that the application was brought after inordinate delay of nearly four years, and that joinder post-judgment was irregular. The court first held, relying on Yani Haryanto v E.D. & F. Man (Sugar) Ltd, that since no Record of Appeal was proved filed, review jurisdiction subsisted despite the notice of appeal. However, on the merits, the court found the Defendants failed to establish the Order 45 threshold: the alleged new evidence was discovered post-judgment in December 2022 yet the application came over three years later without plausible explanation, and the Defendants inconsistently claimed the land was public despite having counterclaimed adverse possession. The intended interested parties also failed to demonstrate a direct interest or necessity of joinder in a concluded suit. The Notice of Motion was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should review the judgment delivered on 16th September 2021
  2. 2.Whether the 1st and 2nd Intended Interested Parties should be joined in this suit post-judgment

Key legal issues

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01

Whether the court has jurisdiction to review its judgment where a notice of appeal was filed

Holding

The court has jurisdiction since no Record of Appeal was filed in the Court of Appeal

Reasoning

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.

p. 5
02

Whether the Defendants met the threshold for review on discovery of new evidence

Holding

No - the alleged new survey evidence did not warrant review and the application was brought after inordinate delay

Reasoning

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.

p. 6
03

Whether intended interested parties can be joined post-judgment

Holding

No - joinder is not available once proceedings are concluded

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Dismissal of the Defendants' Notice of Motion dated 20th March 2025
  2. 2.Costs of the application to the Plaintiff

The bench

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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

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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

p. 6

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

p. 6

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

p. 4

Costs

Application dismissed with costs to the Plaintiff

Quotable passages

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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.
p. 6Refusal of review
In the foregoing, I find the instant Notice of Motion application unmerited and will dismiss it with costs.
p. 6Final orders - dismissal
Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review.
p. 4Review jurisdiction despite notice of appeal
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.
p. 6Joinder post-judgment
Such evidence must be credible, material to the case, and not merely confirmatory of what was already presented.
p. 5Admission of new evidence on review
it is trite that one cannot seek the said orders in respect to public land
p. 5Adverse possession unavailable over public land

Issues in the judgment

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minor

The judgment alternates between 'December 2022' and 'February 2023' as the date of the survey report relied on as new evidence

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, "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.