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ELCDismissedNakuru ELC No. E001 of 2024

Mburu v Chege & 2 others (Environment and Land Case E001 of 2024) [2026] KEELC 3977 (KLR)

Environment and Land Court of Kenya
1 July 2026
MOM. A. Odeny
1,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) disposed of a Notice of Motion dated 19th March, 2026 by the Plaintiff/Applicant, Samuel Wainaina Mburu, seeking review, variation and/or setting aside of the judgment delivered on 25th February, 2026, on grounds of sufficient cause, discovery of new evidence, and alleged errors of fact on the face of the record. The Applicant contended that a banker's cheque of Kshs. 1.5 million paid towards the purchase of the subject property did not state who paid it, that he was not a signatory to the sale agreement dated 12th September, 2009 despite being the person who paid the cheque, that the transaction was therefore suspicious, and that individuals known to the Defendants had subdivided the property without the necessary witnesses being called. The 2nd Defendant/Respondent, David Mwangi Wamugunda, opposed the application as an abuse of process, an attempt to re-open a case conclusively determined on merits, and an invitation to the court to sit on appeal over its own decision. Both parties filed submissions. The court framed a single issue: whether the Applicant met the threshold for review under Order 45 Rule 1(1) of the Civil Procedure Rules. Applying Evan Bwire V Andrew Aginda as approved in Stephen Githua Kimani V Nancy Wanjira Waruingi, the court held that the matters raised were not new evidence undiscoverable with due diligence and did not constitute an error apparent on the face of the record; the Applicant's proper remedy, if aggrieved, was an appeal. The application was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has met the threshold for review/setting aside of the Judgment dated 25th February 2026
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the Applicant met the threshold for review under Order 45 Rule 1(1)

Holding

The application was dismissed; the grounds advanced (regarding the banker's cheque and the sale agreement) were not new and important matter discovered after due diligence, nor an error apparent on the face of the record.

Reasoning

The court considered the review jurisdiction under Order 45 Rule 1(1) and found the Applicant's complaints did not fall within the recognized grounds for review. The matters raised were known to the Applicant at trial and amounted to an attempt to re-open a case already determined on merits; the proper remedy was an appeal.

p. 5

Legal principles established

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  • An application for review will only be allowed on strong grounds, particularly where its effect would be to reopen the case afresh; the applicant must demonstrate new evidence which could not be obtained even after exercise of due diligence.
  • A party aggrieved by a judgment should pursue an appeal rather than seek review on grounds that do not fall within Order 45 Rule 1(1).

Court orders

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  1. 1.The Notice of Motion application dated 19th March, 2026 is dismissed
  2. 2.Costs of the application awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Review, variation and/or setting aside of the judgment delivered on 25th February, 2026

The grounds raised do not fall within the review principles in Order 45 Rule 1(1); no new evidence was discovered after exercise of due diligence and no error apparent on the face of the record was demonstrated.

p. 6

Costs

The application dated 19th March, 2026 is dismissed with costs to the Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Applicant has not met the threshold for review as he has not demonstrated the existence of new evidence which he could not get even after exercising due diligence.
p. 6Threshold for review - discovery of new evidence
The upshot is that the Application dated 19th March, 2026, is hereby dismissed with costs to the Respondents.
p. 6Final orders
An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh.
p. 6Review cannot be used to reopen a determined case

Issues in the judgment

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minor

The judgment states the judgment under review was delivered on 25th February, 2026 in one place and on 12th February, 2026 in the supporting affidavit; paragraph 17 also refers to a 'judgment delivered on 25th February 2016', an apparent typographical error in the year.

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, "Mburu v Chege & 2 others (Environment and Land Case E001 of 2024) [2026] KEELC 3977 (KLR)", Case Analysis (2026). Nakuru ELC No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3977/eng@2026-07-01

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