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ELCDismissedNotice of Motion dated 17th December, 2025 (in the main suit re Nairobi/Block 79/787)· [2026] KEELC 4561 (KLR)

Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)

Environment and Land Court
9 July 2026
5,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed landowners' attempt to reopen a 2020 judgment, ruling that later corruption allegations and a five-year delay don't justify review.

What this practically means

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Executive summary

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The Judgment-Defendants/Applicants moved the Environment and Land Court by Notice of Motion dated 17th December 2025, under Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1 and 5, seeking review and setting aside of the judgment of 24th September 2020, under which the Plaintiffs were declared entitled to exclusive possession of Nairobi/Block 79/787 after the Defendants filed no defence or evidence. The Applicants relied on the Ethics and Anti-Corruption Commission's 2025 suit (Milimani ELC No. E574 of 2025) alleging irregularities in the original allocation, contending this was new and important evidence. The Plaintiffs/Respondents opposed, filing a preliminary objection that the application was barred by res judicata and functus officio, having succeeded in dismissing a similar motion on 20th December 2023, and further argued material non-disclosure and abuse of process. The court framed two issues: competence of the motion and the threshold for review. It found the motion competent - the earlier application was premised on different grounds (counsel's failures, setting aside an ex parte judgment) while the present one invokes the review jurisdiction on fresh evidence, so res judicata did not apply. On the merits, however, the application failed: the five-year delay between judgment and motion was inordinate and unexplained; the EACC pleadings were mere allegations, not evidence; and a litigant who filed no defence cannot use review to introduce matters not investigated or proved at trial. The court also noted the pending EACC suit was the proper forum for testing those allegations. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the motion is barred by res judicata and functus officio given the earlier ruling of 20th December 2023

Holding

The present application is not barred; the two motions are distinct and invoke different jurisdictions of the court.

Reasoning

The earlier motion of 13th April 2023 sought leave for new advocates, stay of execution, setting aside of the ex parte judgment, leave to file a defence out of time and joinder, and was dismissed. The present motion is expressly brought under Section 80 CPA and Order 45 seeking review on the ground of newly discovered evidence arising from EACC investigations, an issue neither raised nor determined in the earlier application. The Section 7 res judicata elements are therefore not satisfied conjunctively.

p. 8
02

Whether the application was brought without unreasonable delay

Holding

The delay of over five years between judgment (24th September 2020) and the application (17th December 2025) was inordinate and unsatisfactorily explained.

Reasoning

Awareness of the EACC suit in November 2025 may explain the period from discovery to filing, but not the five-year gap from judgment. The Applicants did not show what steps they took in the intervening period to challenge the judgment or ascertain facts warranting reopening. Review is exceptional and the law does not contemplate a litigant remaining inactive for years then reviving a concluded dispute.

p. 10
03

Whether EACC investigations and pleadings in Milimani ELC No. E574 of 2025 constitute new and important evidence for review

Holding

No; the EACC pleadings are allegations, not evidence, and cannot impeach a subsisting judgment.

Reasoning

The material relied upon consists of pleadings filed by the EACC containing allegations about the historical allocation and transfer of the suit property. These do not constitute evidence, let alone conclusive proof of fraud or invalidity of title. Moreover, the Applicants filed no defence and adduced no evidence at trial; review cannot be used as a vehicle to introduce matters they failed to investigate or prove, nor to convert review into an appeal.

p. 11

Legal principles established

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  • The institution of a fresh suit by a third party (such as the EACC) years after judgment does not, by itself, amount to discovery of new and important matter or evidence warranting review.
  • A litigant who elected not to adduce evidence at trial cannot use review to introduce matters they failed to investigate, plead or prove; review is not a second opportunity to litigate.

Court orders

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  1. 1.The Notice of Motion dated 17th December, 2025 is dismissed with costs.
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, Cap 21; Order 45 Rules 1 and 5 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Ngeru & another v Njagi & 3 others (Environment and Land Case Civil Suit 1031 of 2013) [2026] KEELC 4561 (KLR)", Case Analysis (2026). Notice of Motion dated 17th December, 2025 (in the main suit re Nairobi/Block 79/787). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4561/eng@2026-07-09

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