Wasike v Simiyu (Environment and Land Case 161 & 91 of 2014 & 99 of 2019 & 86 of 2017 (Consolidated)) [2026] KEELC 1107 (KLR)
The bottom line
#The Environment and Land Court in Busia refused to review its 2024 land judgment, confirming review is not a chance to re-argue a lost case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant established discovery of new and important matter or evidence
No new and important matter was established; the alleged contradictory survey reports were never availed to the Court, and the Defendant's own pleading showed the alleged new evidence came to light only after the Motion had been filed
The Defendant claimed three contradictory survey reports, including one by the County Surveyor, but none were availed for the Court's perusal, making it impossible to gauge their value. Further, while he averred the new matter came to light on 30th January 2025, the Motion was dated 5th January 2025, meaning the evidence could only have come to light after filing. This inconsistency demonstrated a lack of candour, disentitling him from the Court's discretionary equitable remedy.
Whether there was a mistake or error apparent on the face of the record
Practical difficulties in executing the decree discovered post-judgment are not a mistake or error apparent on the face of the judgment
The Defendant argued the Court was misled into delivering judgment under a mistaken belief that a survey report reflected the true position on the land. The Court held that if execution became difficult because of what the County Surveyor discovered post-judgment, that cannot be described as an error apparent on the face of the judgment, since such an error must be self-evident without elaborate argument. Any perceived error in the trial judgment is a ground of appeal, not review.
Whether the Motion infringed the rights of non-joined parties affected by the consolidated judgment
Allowing the Motion would infringe the rights of other parties to the consolidated suits who were not impleaded, contrary to Article 50(1) and natural justice
The consolidated suits involved other parties including Desterio Kulundu Barasa Ondwasi, Abdalla Tabata, Jacob Etyang Ekasiba Asumani Mbayi, Benjamin Otyanga and Joseph Wanzala Odedi. The judgment sought to be reviewed touches on their rights, yet only Kevin Morris Wasike and Gabriel Muindi Simiyu were parties to the Motion. Orders granting review would affect those parties' rights without a hearing, which alone sufficed to decline the Motion.
Whether the application was filed without unreasonable delay
A delay of 8 months in filing the review application was unreasonable
The judgment was delivered on 7th May 2024 and the Motion filed on 5th January 2025, some 8 months later. Review is an equitable remedy granted at the Court's discretion, requiring the applicant to approach the Court with clean hands and full and open disclosure. The Defendant's date inconsistency regarding the discovery of new evidence showed he was not candid, and he did not deserve the exercise of the Court's discretion in his favour.
Legal principles established
#- A party seeking review must establish discovery of new and important matter or evidence, or a mistake or error apparent on the face of the record, or sufficient reason, and must apply without unreasonable delay
- An error apparent on the face of the record must be self-evident and not require elaborate argument
- An error requiring a long-drawn process of reasoning or admitting of two options is not an error apparent on the face of the record
- Review is an equitable remedy, not a second bite at the cherry or an opportunity to re-litigate
Court orders
#- 1.The firm of Masiga, Otieno & Associates Advocates allowed to come on record and prosecute the Motion
- 2.The Notice of Motion dated 5th January 2025 dismissed with costs
- Jurisdiction invoked
- Articles 19(2), 21(3), 22(1), 28, 40, 43, 47, 50(1), 57, 60(f) and 159 of the Constitution; Sections 13(2)(e), 13(3), 13(7), 18(a)(11), 18(d) and 19 of the Environment and Land Court Act; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 Rules 1(1), 2(1) and 5 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike v Simiyu (Environment and Land Case 161 & 91 of 2014 & 99 of 2019 & 86 of 2017 (Consolidated)) [2026] KEELC 1107 (KLR)", Case Analysis (2026). Notice of Motion dated 5th January 2025 (arising from consolidated suits Busia ELC Case No 91 of 2013, Busia ELC Case No 99 of 2019 and Busia ELC Case No 86 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1107/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.