Wandary & 104 others v Bharmaz & another (Environment and Land Case E019 of 2021) [2026] KEELC 2899 (KLR)
The bottom line
#A Kenyan land court refused to reopen a decided case, confirming you cannot use review to fix weak evidence you should have presented at trial.
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 plaintiffs' application for review of the judgment of M.A. Odeny J. dated 25th November 2022 is merited
- 2.Whether the court, having rendered final judgment and become functus officio, may reopen the matter for the adduction of further evidence
Key legal issues
#Limits of the power of review
Review is not a vehicle for a rehearing; minor mistakes or a second trip over ineffectually covered ground are insufficient grounds.
The court relied on Outa v Okello (SC) citing Sow Chandra Kanta and Northern India Caterers to hold that a judgment is final and departure from that principle requires circumstances of a substantial and compelling character. The applicants' complaint that their case could have been better pleaded goes to rehearing, not review.
Functus officio and additional evidence
Once judgment is entered the court is functus officio and may not reopen the matter for taking further material evidence; the proper course is review or appeal.
Applying Telkom Kenya Ltd v Ochanda, the court held that admitting affidavit evidence after judgment effectively reopens the trial and amends the judgment, which is impermissible. The doctrine of finality bars merit-based re-engagement once judgment is perfected, subject only to narrow exceptions such as correcting clerical errors.
Litigation in piecemeal
A party cannot be permitted to close evidential gaps after judgment by seeking to adduce evidence that was available at trial.
The court found the plaintiffs were offering to produce more evidence to enable a positive judgment, thereby conceding gaps in their case. Such evidence was in their possession at the time of trial, and allowing it would amount to a second bite at the cherry and piecemeal litigation, undermining finality.
Legal principles established
#- A court becomes functus officio upon issuance of judgment; it may review the judgment but cannot reopen it for the taking of further material evidence
- Review is a serious and reluctant remedy available only for glaring omission, patent mistake or like grave error, not for rehearing old arguments
Court orders
#- 1.The plaintiffs' application for review dated 17th March 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent power of review under Order 45 of the Civil Procedure Rules
Relief refused
#Review of the judgment of 25th November 2022 and further orders as necessary for the ends of justice
Review lies only for glaring omission, patent mistake or grave error; the plaintiffs conceded there is no error on the face of the record and were in fact seeking to adduce additional evidence to fill evidential gaps, which the functus officio doctrine forbids
Costs
Dismissed with costs (costs to the defendants)
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.
As they have conceded that there is no error on the face of the record in the judgment or proceedings, their application for review under Order 45 CPR lacks merit and it is hereby dismissed with costs.
The court became functus oficio upon issuance of judgment and could only review the judgment but not reopen it for the taking of further material evidence as proposed by the plaintifis.
A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
It is evident that they are now seeking to close the evidential gaps that they left when they were prosecuting their case which amounts to litigation in piecemeal.
Issues in the judgment
#Inconsistent dates for the underlying judgment - paragraph 1 says it was delivered on 25th November 2022 while paragraph 2 says the judgment is dated 21st November 2022
Delivery date stated as 13th May 2026, more than three years after the review application of 17th March 2025 - possibly a typographical error for 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandary & 104 others v Bharmaz & another (Environment and Land Case E019 of 2021) [2026] KEELC 2899 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2899/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.