Mukhwana v Sawenja & another (Environment and Land Case 60 of 2019) [2026] KEELC 467 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you cannot appeal a judgment and simultaneously ask for review — the defendants lost on both grounds and must pay costs.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter as a ground for review
Not established; the survey maps and other documents were in existence before judgment and the applicants testified without seeking to adduce them, showing lack of due diligence.
The court traced the trial history showing defendants testified on 10/7/2025 and never sought to adduce the alleged new evidence. Under Rose Kaiza, new-evidence review requires due diligence and proof that the material was not within the applicant's knowledge at the time of the decree. Uncertified survey maps not authenticated by the Director of Surveys could not establish the alleged facts.
Error apparent on the face of the record
Not established; the alleged errors raise contested factual questions rather than self-evident mistakes.
Applying Nyamogo & Nyamogo -vs- Kogo, an error apparent on the face of the record must be self-evident without extensive argument. The applicants' complaints about the evidence of PW2 and PW3 and the source of parcels 340 and 343 required verification through evidence, including green cards, subdivision documents and title deeds, which were not annexed.
Competence of review where a notice of appeal has been filed
The application is incompetent because the applicants filed a notice of appeal and cannot pursue both appeal and review.
Following Serephen Nyasani Menge -vs- Rispah Onsase, a party cannot apply for review and simultaneously appeal against the same decree. The respondent demonstrated by annexures JM(2A) and (2B) that the applicants filed a notice of appeal after judgment; electing appeal forecloses review, and a good ground of appeal may not be a ground for review.
Unexplained delay in bringing the review application
The delay was not explained and weighs against the application.
The judgment was delivered on 24/9/2025 and the application filed on 6/11/2025; Order 45 requires the application to be made without unreasonable delay. The court found the applicants had 'waited for far too long' and that no explanation for the delay was offered, reinforcing dismissal.
Legal principles established
#- A party who has exercised the right of appeal cannot also apply for review of the same decree or order
- New evidence for review must be credible material to the case, discovered despite due diligence, and not merely confirmatory
- An error apparent on the face of the record must be self-evident and require little or no probing of the record
- Allegations resting on contested facts are not a proper basis for review
Court orders
#- 1.The application dated 6/11/2025 seeking review of the judgment delivered on 24/9/2025 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukhwana v Sawenja & another (Environment and Land Case 60 of 2019) [2026] KEELC 467 (KLR)", Case Analysis (2026). Kitale ELC suit (application dated 6/11/2025) — not stated in full in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/467/eng@2026-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.