https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3045

Kiragu v Munyi & 2 others (Environment and Land Appeal E018 of 2023) [2026] KEELC 3045 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3045 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Appeal E018 of 2023 SM Kibunja, J May 21, 2026 Between John Karani Kiragu Appellant and Maina Munyi 1st Respondent Henry Mbiriti Mwaura 2nd Respondent Mburu Mwaura 3rd Respondent Ruling 1.The appellant/applicant filed the notice of motion dated the 23rd April 2025 seeking for orders inter alia that:a.The firm of C N Mwiti and Co. Advocates, be allowed to come on record for the appellant, in place of A. P. Kariithi and Co. Advocates.b.The judgment of 20th February 2025 and all consequential orders be reviewed, varied and/or set aside.c.Stay of execution of the judgment delivered on 20th February 2025 pending the hearing and determination of the application.d.The taxation of the respondent’s bill of costs dated 8th March 2025 be suspended pending the hearing and determination of the application.e.Costs be provided for.The application is premised on the five (5) grounds on its face, and supported by the affidavit sworn by John Karani Kiragu, appellant, on the 23rd April 2025.It is the appellant’s case that after the judgement of 20th February 2025, he discovered new and important evidence that was not produced before the trial and this court. That the new evidence shows the adjacent land parcels and the measurements of the suit property. That the adjacent parcels being Mwea/Tebere/1290 and 1001 belong to the National Irrigation Board (NIB) and Mr. Gichai who were not parties in this suit and he has no dispute with them.That the respondents have not produced ownership documents over Land Parcel Mwea/Tebere/253 that they occupy illegally. That the County Surveyor’s Map, which is the new evidence, show the land parcels adjacent to the suit property do not belong to the respondents, and the application should therefore be allowed. 2.The respondents opposed the application through the replying affidavit of John Ndungu Chege, advocate, sworn on the 9th May 2025, deposing inter alia that the application is fatally defective, lacks merit and ought to be dismissed with costs; that the counsel for the applicant is not properly on record as he has not obtained the consent of the outgoing counsel or leave of the court as required under Order 9 Rule 9 of Civil Procedure Rules; that this being an appeal, the court can only rely on the evidence presented before the trial court and not any new evidence; that the application was filed after the applicant was served with notice of taxation, and should be dismissed with costs. 3.The learned counsel for the appellant and respondents filed their submissions dated 20th July 2025 and 16th July 2025 respectively, that the court has considered. 4.The following are the issues for the court’s determination on the application dated 23rd April 2025:a.Whether leave for counsel to come on record post judgement should be granted.b.Whether the applicant has met the threshold for review of this court’s judgment.c.Who pays the costs. 5.The court has carefully considered the grounds on the notice of motion, affidavit evidence by both sides, submissions by the parties’ learned counsel, the superior court decisions cited thereof and come to the following findings:a.That the application has at its heading invoked Order 51 Rule 1 & Order 45 Rule 1(1) of Civil Procedure Rules, Sections 1A, 3A & 80 of Civil Procedure Act and Articles 159(2)(b), (d) and 162(2)(b) of the Constitution.This being evidently an application for review, the applicable provisions are Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of Civil Procedure Rules. Section 80 provides that;“Any person who considers himself aggrieved-a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act.may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”While Order 45 Rule 1(1) provides as follows:“1.(1)Any person considering himself aggrieved-(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed.and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgement to the court which passed the decree or made the order without unreasonable delay.”b.The above provisions of the law, and the superior courts pronouncements on the same, leaves no doubts that a court in Kenya has jurisdiction to review its judgement based on new evidence if:i.it is discovered after the exercise of due diligence;ii.was not within the applicant’s knowledge; andiii.could not be produced at the time of the decree or order was made.Such evidence must however, be relevant and of a nature that could have altered the judgment. The application for review must be made or filed before the court that made or issued the order or judgment sought to be reviewed, and not before the appellate court. What the applicant desires to attain through his application is a different finding or decision from the trial court’s decision of 19th November 2018 that dismissed his claim, if the survey map dated 5th April 2025 is admitted and considered in evidence. That cannot be entertained by the court sitting on appeal over the trial court’s judgment.c.An application for review of the court’s order or judgment is different from an application for admission of new evidence that may be filed before an appellate court in accordance with Section 78 (1)(d) of the Civil Procedure Act, Chapter 21 of Laws of Kenya and Order 42 Rule 27 of Civil Procedure Rules.An applicant in such an application must show that the evidence could not have been obtained, with reasonable diligence for the trial; that it is credible; and would likely influence the result in the matter before the court. However, such evidence cannot be used to fix weak points, or fill up gaps in a party’s original case. See the decision in the case of Gachuki & Another versus Njenga & 2 Others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7th March 2025) (Ruling), which cited the Supreme Court of Kenya case of Mohamed Abdi Mahamud versus Ahmed Abdullahi Mohamed & 3 Others which set out the guidelines an appellate court should consider before granting orders of admission of new evidence.d.This court’s judgement of 20th February 2025 was in exercise of its appellate jurisdiction in respect of the appellant’s appeal against the trial court’s judgement of 19th November 2018. In its appellate jurisdiction, the court ordinarily relies on the pleadings and proceedings before the trial court in its fresh re-evaluate of the evidence so as to draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. This principle was stated in Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal held:“This Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”e.That as the Surveyor’s Map dated 5th April 2025, that the applicant relies on as new evidence, was not part of the evidence presented before the trial court, and therefore not part of the record of appeal filed in this appeal, the said map is incapable of being the basis of reviewing this court’s judgement delivered on 20th February 2025. It is instructive to note that the said surveyors map was procured after the judgement of this court on appeal was delivered and therefore did not exists at the time of trial or hearing of the appeal.f.The application for review should therefore, have been filed before the trial court, and not the appellate court, as it is the trial court’s decision that could be impacted one way or the other by the contents of the said surveyor’s map, if accepted as evidence.The applicant has clearly disclosed that after this court’s judgement of 20th February 2025 dismissing his appeal, he engaged the County Surveyor, who on 20th March 2025 surveyed Land Parcel Mwea/Tebere/B/253 to ascertain its boundaries, and prepared a Survey Map dated 5th April 2025, that is the new evidence upon which he seeks review of the judgement.He has further submitted that though he had engaged surveyors previously, the surveyor’s map was not produced as exhibit before the trial court or this court. It is therefore the trial court’s decision that he should have sought to review and not this court’s judgement. The review application is therefore without merit.g.In respect of the prayer for the firm of C N Mwiti and Co. Advocates, to be allowed to come on record for the appellant, in place of A. P. Kariithi and Co. Advocates, I find as consent letter dated 23rd April 2025 that was duly signed by both the outgoing and incoming firms was obtained and filed, contrary to the respondent’s counsel contention, that prayer should therefore be granted.h.Under Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause the court directs otherwise. In this application, I find no cause to deviate from that edict and the appellant/applicant will meet the respondents’ costs. 6.Flowing from the above conclusions, the court finds and orders as follows:a.That the prayer for the firm of C N Mwiti and Co. Advocates, to come on record for the appellant, in place of A. P. Kariithi and Co. Advocates is granted.b.That the rest of the prayers in the application dated 23rd April 2025 are without merit and are dismissed.c.The appellant/applicant to bear the respondents’ costs.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY 2026.S. M. KibunjaELC JUDGEIn the presence of:Appellant/Applicant – M/s NgumbauRespondents – Mr. Ndungu ChegeKinyua/Charles - Court AssistantS. M. KibunjaELC JUDGE