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ELCDismissedNot stated in the judgment text (Murang'a ELC appeal; reference to Murang'a ELC Case No. 21 of 2019 is a separate matter)· [2026] KEELC 2213 (KLR)

Githuni & another v Muigai & another (Environment and Land Appeal E021 of 2021) [2026] KEELC 2213 (KLR)

Environment and Land Court
21 April 2026
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a dismissed landowners' attempt to reopen an appeal using an older decree, because review is not the doorway for forgotten evidence.

What this practically means

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Executive summary

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The Respondents moved the court by notice of motion dated 19-12-2024 under Order 45 rule 1(1)(a) and (b) of the Civil Procedure Rules and Sections 80 and 3A of the Civil Procedure Act, seeking review and/or setting aside of the court's judgment and orders of 23-9-2024 in this appeal, contending that the judgment contradicted the orders of 24-2-2022 in Murang'a ELC Case No. 21 of 2019 which cancelled the parent title Loc. 2/Makomboki/1301 from which the suit parcels 1804 and 1805 were mutated, and that judgment was delivered in their absence. The Appellants opposed through grounds of opposition and a replying affidavit, arguing the application was incompetent, that the incoming counsel was improperly on record, that the decree was not new matter, and that the review sought would amount to the court sitting on appeal against its own orders. The court framed four issues: whether the Respondents' counsel was properly on record; whether the decree of 24-2-2022 disclosed sufficient material of the ELC decision; whether the court could consider that decree when it was not the trial court; and whether the motion met the Order 45 rule 1 criteria. The court found counsel not properly on record absent an Order 9 rule 9 order; found the decree alone insufficient without the full judgment; held that Section 78(1)(d) additional evidence was the only lawful avenue to introduce the decree and that opportunity had passed; and held the motion failed the review criteria as the decree was neither new matter nor unknown, and the application was delayed. The motion was dismissed with costs to the Appellants on 21 April 2026.

Key legal issues

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01

Whether the Respondents' counsel was properly on record after judgment

Holding

Counsel was not properly on record; no court order under Order 9 rule 9 was produced, and a consent referenced only in submissions was insufficient without a court order

Reasoning

Order 9 rule 9 requires that a change of advocate after judgment be effected only by court order or a consent between the outgoing and incoming advocates. The Respondents' counsel came on record after the 23-9-2024 judgment with no order produced; despite the anomaly being raised in the replying affidavit, no supplementary affidavit annexing a court order was filed, only a submission that a consent had been filed. A supplementary affidavit with the order was the bare minimum.

p. 3
02

Whether the decree of 24-2-2022 in Murang'a ELC Case No. 21 of 2019 disclosed sufficient material of that court's decision

Holding

It did not; the full judgment was necessary and the Respondents' failure to attach it left the Appellant's uncontroverted depositions standing

Reasoning

The decree alone did not disclose what the ELC court decided or why. Without the full judgment the court could not discount the 2nd Appellant's deposition that the judgment did not prejudice the Appellants and that the parent title 1301 had already been closed on subdivision before the 2022 judgment. The full judgment would have dispelled lingering questions, and its absence weighed against the Respondents.

p. 3
03

Whether the court could consider the ELC Case No. 21 of 2019 decree when it was not the trial court and the decree was not introduced during the appeal

Holding

It could not; the decree should have been introduced through additional evidence under Section 78(1)(d) of the Civil Procedure Act during the appeal, and that window having passed, it was too late

Reasoning

It was incumbent on the Respondents to introduce the decree, which existed well before several directions appearances at which their counsel was present and never mentioned it. Section 78(1)(d) permits additional evidence on appeal, and that was the only lawful avenue; having forgone it, the Respondents could not introduce the decree through a review application.

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04

Whether the motion met the criteria for review under Order 45 rule 1

Holding

It did not; the decree was not a new matter, was within the Respondents' knowledge, and the application was filed almost three months after judgment

Reasoning

The decree in ELC Case No. 21 of 2019 was issued on 8-3-2022, over two years before the 3-7-2024 directions appearance, so it was not a new matter discoverable only after judgment. It was within the Respondents' knowledge throughout, and the three-month delay between judgment on 23-9-2024 and the application on 19-12-2024 further disqualifies the motion under Order 45 rule 1.

p. 3

Legal principles established

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  • A change of advocate after judgment requires an order of the court or a filed consent, and a consent alone without a court order does not bring the incoming counsel properly on record
  • Additional evidence on appeal under Section 78(1)(d) of the Civil Procedure Act is the only lawful avenue for introducing a decree or other evidence after the appeal has been heard, and once that opportunity passes it is too late
  • For review under Order 45 rule 1(1)(b), the alleged new matter must be new, not within the applicant's knowledge, and raised without unreasonable delay

Court orders

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  1. 1.The motion dated 19-12-2024 seeking review of the judgment and orders of 23-9-2024 is dismissed
  2. 2.Costs of the application awarded to the Appellants
Jurisdiction invoked
Order 45 rule 1(1)(a) and (b) of the Civil Procedure Rules, Sections 80 and 3A of the Civil Procedure Act (review jurisdiction of the court that delivered the judgment)

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, "Githuni & another v Muigai & another (Environment and Land Appeal E021 of 2021) [2026] KEELC 2213 (KLR)", Case Analysis (2026). Not stated in the judgment text (Murang'a ELC appeal; reference to Murang'a ELC Case No. 21 of 2019 is a separate matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2213/eng@2026-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.