https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3253

Mwakina & another v Mwafue (Environment and Land Appeal E004 of 2023) [2026] KEELC 3253 (KLR) (Environment and Land) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3253 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Appeal E004 of 2023 EK Wabwoto, J May 28, 2026 Between Benson Mwakina 1st Appellant Shariff Mwanaisha Saida 2nd Appellant and Hellen Talu Mwafue Respondent Ruling 1.This Court is seized of an Application for Review of a Judgment on costs dated 23rd January 2024, delivered in ELC Appeal No. E004 of 2023. The Application was filed on 12th November 2025 by the Respondent/Applicant Hellen Talu Mwafue seeking to review the costs award made in favour of the Appellants/Respondents Shariff Mwanaisha Saida and Benson Mwakina. 2.The Application is premised on the discovery of what the Applicant alleges to be new and important evidence, namely, a Judgment delivered on 25th September 2025 in a related case ELC Case No. 4 of 2024, wherein the Court found that the underlying land allocation to the 1st Appellant was effected without proper authority and was therefore illegal. The Applicant contends that in light of this finding, the Appellants should not be permitted to benefit from the costs award which arose from proceedings concerning property obtained through unlawful means. 3.The Appellants/Respondents have opposed the Application, contending that it is an abuse of the review process, that the subsequent judgment does not constitute new evidence, and that the costs award should not be reopened. 4.The Applicant filed a suit in ELC Case No. E006 of 2021 against the Appellants, alleging that around 2020, the 1st Appellant Shariff Mwanaisha Saida had been allocated 5 acres of land by the Kishamba 'B' Group Ranch Executive Committee as compensation for her legal representation. The Applicant contended that approximately 2 acres of this allocation fell within her own land holding, which she had purchased in 1992. The Applicant sought an order of injunction preventing the 1st Appellant from interfering with her property, general damages, and costs. 5.On 23rd January 2024, the trial Court struck out the Applicant's plaint and awarded costs against the Applicant in favour of the Appellants. The Applicant did not appeal this decision. 6.Subsequently, on 25th September 2025, this court delivered a judgment in ELC Case No. 4 of 2024 John Kivure and 7 Others v. Benson Mlambo Mwakina and 4 Others. In that case, the Court examined whether the Kishamba 'B' Group Ranch Executive Committee had the authority to allocate community land to non-members. The Court found, inter alia, that:1.The Executive Committee acted ultra vires in allocating 5 acres of community land to Shariff Mwanaisha Saida, who was not a member of the Group Ranch.2.There was no evidence of a resolution by the Group Ranch authorizing such allocation.3.The allocation constituted an attempt to convert community land into private land without compliance with the Community Land Act and the Group Ranch's constitution.4.The act was discriminatory and ultra vires. 7.The Applicant submits that the Judgment delivered on 25th September 2025 constitutes new and important evidence not within her knowledge at the time the costs judgment was delivered. She argues that the discovery of the illegality of the land allocation provides grounds for review under Order 45 Rule 1 of the Civil Procedure Rules, 2010. 8.The Applicant invokes the doctrine of ex turpi causa non oritur actio, contending that no person should benefit from an illegal act. Since the 1st Appellant obtained the land through an illegal allocation, the Applicant argues, she should not be permitted to retain the costs award which arose from proceedings concerning that illegally obtained property. The Applicant submits that it would be contrary to justice and fairness to allow the Appellants to benefit from the fruits of an illegal transaction. 9.The Applicant further contends that the subsequent judgment has changed the legal position and created peace on the suit property such that the Appellants can no longer raise claims against her. Therefore, the circumstances warranting review exist under the category of 'any other sufficient reason' under Order 45 Rule 1. 10.The Appellants/Respondents submit that the Application is an abuse of the review process and should be dismissed. They contend that the judgment in ELC Case No. 4 of 2024 does not constitute 'new and important matter or evidence' as contemplated by the law. The Appellants argue that a judgment in a different suit between different parties cannot retroactively become 'new evidence' for purposes of reviewing a costs award in separate proceedings. 11.The Appellants point out that the 1st Appellant was not a party to ELC Case No. 4 of 2024 and was condemned in absentia. They argue that the subject matter of that case the Committee's general capacity to allocate land is distinct from the issues in the original suit whether the Applicant had valid title to the disputed 2 acres. They further contend that the evidence concerning the Committee's lack of authority existed at the time of the original trial and could have been pursued with due diligence. 12.On the merits of the costs issue, the Appellants submit that costs follow the event as a fundamental principle under Section 27 of the Civil Procedure Act. Having successfully defended the suit, they are entitled to costs. They argue that the illegality of the underlying land allocation does not retroactively change the fact that they were the successful parties in the litigation. The Appellants invoke the principle of finality, contending that allowing review of a costs judgment that was delivered over twenty months prior and never appealed would undermine the finality of litigation. 13.Having carefully considered the application, rival affidavits, written and oral submissions made, the following five issues arise for determination;I.Whether the Applicant has satisfied the legal threshold for review under Order 45 Rule 1 of the Civil Procedure Rules, 2010.II.Whether the Judgment delivered on 25th September 2025 in ELC Case No. 4 of 2024 constitutes new and important matter or evidence within the meaning of the law.III.Whether the doctrine of ex turpi causa non oritur actio applies to prevent the Appellants from retaining the cost award.IV.Whether there exists any other sufficient reason warranting a review of the costs judgment.V.If review is warranted on any of the above grounds, whether the Applicant is entitled to the reliefs sought. 14.The power of review is derived from Section 80 of the Civil Procedure Act and is regulated by Order 45 Rule 1 of the Civil Procedure Rules, 2010. Order 45 Rule 1 circumscribes the grounds upon which a review may be granted. These grounds are: (1) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time the decree was passed; (2) a mistake or error apparent on the face of the record; or (3) any other sufficient reason. The application must be made without unreasonable delay. 15.The courts have consistently held that review is not an appeal and that the grounds for review are strictly construed and applied with great caution. In Pancras T. Swai v. Kenya Breweries Limited [2014] eKLR, the Court of Appeal held that an erroneous view of evidence or law is a ground for appeal, not review. The purpose of review is to correct palpable errors and to consider genuinely new evidence that could not reasonably have been produced earlier, not to rehear and reconsider matters already determined. 16.The Applicant contends that the Judgment delivered on 25th September 2025 in ELC Case No. 4 of 2024 constitutes new and important evidence warranting review. This Court respectfully disagrees for several compelling reasons. 17.First, a judgment delivered in a separate case involving different parties, with different issues before the court, and arrived at on different facts, does not constitute 'evidence' within the meaning of Order 45 Rule 1. Evidence, properly understood, comprises facts, documents, or testimony that can be adduced to prove or disprove material facts. A judgment is the outcome of proceedings; it is not itself evidence of facts relevant to a prior decree. If an applicant could rely on every subsequent judgment that incidentally touches on matters related to the original case, the finality of judgments would be perpetually uncertain. 18.Second, the Judgment in ELC Case No. 4 of 2024 was delivered in a case where the 1st Appellant was not a party. The Applicant cannot use a judgment to which she is not a party, and in which the 1st Appellant was not a party as the basis for reopening a costs award in separate proceedings. 19.Third, the legal principles underlying the Committee's lack of authority to allocate land were well-established at the time of the trial of ELC E006/2021. The Community Land Act was in force. The Group Ranch's constitution existed. The lack of a proper resolution could have been investigated and established at trial. The Applicant does not explain why, if she believed the allocation to be unauthorized and illegal, she did not adduce this evidence at trial. The Applicant bears the burden of demonstrating due diligence and has not met this burden. 20.Fourth, the temporal distance between the decrees is significant. The costs decree was issued on 23rd January 2024. The later judgment was delivered on 25th September 2025 a gap of more than twenty months. While the Applicant filed her application shortly after receiving the later judgment, the passage of time suggests that what the Applicant characterizes as 'discovery' is in fact a subsequent development in related litigation, not genuine discovery of evidence that existed but was unknown. 21.The Applicant invokes the doctrine of ex turpi causa non oritur actio . While this doctrine is well-established in Kenyan jurisprudence and operates to prevent courts from enforcing rights arising from illegal transactions, its application to the present matter is misplaced. 22.The doctrine operates to prevent courts from enforcing the substantive rights arising from illegal contracts or transactions. It prevents a person from recovering performance due under an illegal bargain. However, the doctrine does not extend, without more, to every benefit that a party might incidentally enjoy as a result of their participation in illegality, particularly when those benefits arise from separate proceedings. 23.In the present case, the critical distinction is between the allocation and the procedural outcome of the suit. The costs award was made as a consequence of the Applicant losing the original suit. The Appellants received costs because they successfully defended the suit. The illegality of the underlying land allocation is distinct from the procedural success in the suit. While it may be that the allocation was unlawful, this illegality does not automatically mean that the Appellants should be penalized by losing costs for successfully defending against a suit challenging their title. 24.The Appellants' entitlement to costs flows from their success in the litigation, not from any illegal land allocation. Those are separate matters. While it may be that the allocation was illegal, these facts do not convert a legitimate costs award into something arising from illegality. To accept the Applicant's argument would be to apply the doctrine of ex turpi causa retroactively to change the consequences of litigation that has already concluded. The Appellants could not have been expected to anticipate that a judgment in a separate case, more than a year later, would invalidate their costs award. 25.More fundamentally, if every costs award could be reopened whenever it is subsequently discovered that the underlying subject matter involved illegality, there would be no finality to litigation. Parties would be perpetually at risk of having their judgments reopened. This would be antithetical to the rule of law. 26.The third ground for review under Order 45 Rule 1 is 'any other sufficient reason.' While the Applicant's moral position that those who benefit from illegality should not be enriched has intuitive force, this Court does not find it to constitute 'sufficient reason' to reopen a concluded costs award in these circumstances. 27.The Applicant had the opportunity to challenge the allocation's legality at trial but did not do so adequately. The subsequent judgment, while addressing the Committee's general authority, does not definitively establish that the Applicant had a valid claim to the specific parcels in dispute or that her suit should have succeeded on the merits. To permit review on this ground would open the door to endless reopening of concluded litigation whenever subsequent cases touch on related issues. This would be fundamentally inconsistent with the principle of finality. 28.Furthermore, the principle of finality in litigation weighs heavily against reopening a costs judgment that was delivered more than twenty months prior and was never appealed at the time. A judgment that has been delivered and not appealed, and which has settled the rights and obligations of parties, should not be reopened except in the most extraordinary circumstances. 29.Even proceeding on the assumption that the Applicant could establish grounds for review, she would not be entitled to the relief sought. The Appellants were clearly the successful parties in the litigation. The Applicant initiated suit, the suit was struck out, and the Appellants, as successful defendants, received costs. This is the ordinary operation of the law of costs under Section 27 of the Civil Procedure Act. 30.The question of whether the land allocation was legal or not goes to the merits of the underlying land dispute. It does not go to the question of who won the particular lawsuit before the trial court. The Applicant lost the lawsuit, and therefore, absent a good reason to the contrary, the Appellants are entitled to costs. 31.Even accepting the Applicant's characterization of the land allocation as fraudulent, this would not be a 'good reason' to depart from the principle that costs follow the event. While it may be that the allocation was illegal, this fact does not convert a legitimate costs award into something arising from illegality. The Appellants' right to costs arises from their success in defending the suit, not from any illegal land allocation. 32.The Applicant invokes fairness and the wider interests of justice. While these are important considerations, they must be weighed against the need for finality and the proper understanding of how the doctrine of illegality operates. Fairness cuts both ways. The Appellants, having successfully defended the suit, should not be penalized retroactively by the reopening of a concluded judgment merely because subsequent litigation has revealed that the underlying land allocation may have been improper. 33.Based on the foregoing analysis, this Court makes the following findings:a.The Applicant has not satisfied the stringent threshold required for review under Order 45 Rule 1 of the Civil Procedure Rules, 2010.b.The Judgment delivered on 25th September 2025 in ELC Case No. 4 of 2024 does not constitute 'new and important matter or evidence' as contemplated by the law. It is a judgment in a different case involving different parties, and it does not provide evidence of facts that existed and could not have been discovered at the time of the original trial.c.Even if the underlying land allocation was unauthorized and illegal, this fact does not provide a sufficient reason to reopen the costs judgment under the doctrine of ex turpi causa non oritur actio. That doctrine does not extend to prevent a party from receiving costs for successful litigation.d.The principle of finality in litigation weighs against reopening a costs judgment that was delivered more than twenty months prior and was not appealed at the time.e.Even proceeding on the assumption that review could be justified, the Applicant would not be entitled to the relief sought because the costs were properly awarded to the successful defendants, and this award is not undermined by subsequent findings regarding the legality of the underlying land allocation. Final orders 34.In light of the foregoing findings and analysis, this Court hereby orders as follows:i.The application dated 12th November 2025 is hereby dismissed.ii.Each party to bear own costs of the application. DATED, SIGNED AND DELIVERED AT VOI THIS 28TH DAY OF MAY 2026E. K. WABWOTOJUDGEIn the presence of:-Mr. Olendi for the Appellants.Mr. Mwazighe for the Respondent/Applicant.Court Assistants: Mary Ngoira and David Ngoosa.