Nyanga & another v Ngari & another (Land Case E009 of 2023) [2026] KEELC 3214 (KLR)
The bottom line
#A Machakos court dismissed a request to review its earlier order, ruling that a four-month delay and an attempt to re-argue the case were not acceptable.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met
No — the application was filed four months after the order with no explanation, constituting unreasonable delay, and the grounds were not suitable for review
Order 45 Rule 1(1)(b) requires review applications to be filed without unreasonable delay. The motion was filed four months after the 18 September 2025 order and apparently only as the 20 January 2026 hearing approached. The plaintiffs offered no explanation for the delay. The court also invoked the Supreme Court's guidelines in Parliamentary Service Commission v. Wambora, which stress that review is an equitable remedy, not a right, and not a chance to re-argue.
Whether the court was functus officio and whether the motion was an abuse of process
Yes — the court held it was functus officio and that the plaintiffs were attempting to re-argue their case through the back door
The orders sought, including reinstatement of struck-out parties and re-issue of expired summons, were in substance an attempt to reopen the earlier decision. Relying on Parliamentary Service Commission v. Wambora, review is not an appeal. Grounds unsuitable for review lie on appeal. The plaintiffs' suit against the 3rd to 5th defendants had been struck out for want of service under Order 5 Rule 2(7).
Legal principles established
#- Review must be sought without unreasonable delay; unexplained delay alone warrants dismissal
- Review is not an opportunity to re-argue a case, and a court that has struck out parties for want of service of expired summons becomes functus officio as to grounds suitable for appeal
Court orders
#- 1.The application dated 16 January 2026 is dismissed
- 2.Costs shall be in the cause
- 3.A mention date shall be issued for purposes of taking a hearing date
- Jurisdiction invoked
- Sections 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010 (inherent review jurisdiction of the court that made the order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyanga & another v Ngari & another (Land Case E009 of 2023) [2026] KEELC 3214 (KLR)", Case Analysis (2026). ELCLC E009/23. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3214/eng@2026-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.