The Court of Appeal has dismissed an appeal by five siblings seeking to revive a land dispute against their brother over ownership of a 20-acre property in Makueni County, affirming an earlier decision of the Environment and Land Court.
In a judgment delivered on June 12, 2026, a three-judge bench comprising Justices William Karanja, Kathurima M’Inoti, and Francis Tuiyott upheld the ELC’s decision rejecting an application for review of a 2018 judgment that had dismissed the siblings’ claim. The dispute involved a land which the appellants, Rose Ndanu Mackenzie, Francisca Ndunge Mackenzie, Virginia Nthenya Mackenzie, Kevin Musembi Mackenzie and Lauren Nduku Mackenzie, claimed was held in trust for them by their brother, Barry Manza Mackenzie.
The siblings had originally sued Barry in 2017, arguing that their late father, Mackenzie Musau, had transferred the property to him to hold on behalf of all his children. They sought cancellation of Barry’s title and redistribution of the property among the siblings.
However, the Environment and Land Court dismissed the claim in July 2018, finding insufficient evidence to establish the existence of a trust.
Following that defeat, the siblings changed advocates and filed an application seeking review of the judgment. They argued that they had discovered new evidence, including land registry records and transfer documents, which they said raised questions about how Barry acquired ownership of the property. They also claimed the new documents showed that their late father had not obtained a loan from National Bank of Kenya as previously alleged and that the property had never been auctioned. Barry opposed the application, arguing that the purported new evidence was always available and could have been obtained before trial through reasonable diligence. He further maintained that the application was an attempt to reopen and strengthen a case that had already been determined by the court.
The Court of Appeal agreed with the respondent and held that the appellants had failed to satisfy the legal requirements for review of a judgment. The judges noted that the siblings’ original case was based on the assertion that Barry was the registered owner of the property but held it in trust for them.
The new evidence they sought to introduce, however, appeared to challenge whether Barry was lawfully registered as owner at all.
“The appellants cannot plead that the 1st respondent is the registered owner of the suit property which he holds in trust for them, then be allowed to adduce evidence proving that the 1st respondent is not the registered owner,” the court observed.
The appellate court further found that the land records and transfer documents relied upon by the appellants were public records that could have been obtained before the hearing through ordinary diligence. On the issue of legal representation, the court agreed that the appellants’ new advocates had failed to comply with procedural rules governing change of advocates after judgment. However, the judges noted that the ELC nevertheless considered the review application on its merits and therefore no prejudice was suffered.
The Court of Appeal also emphasized the distinction between a review and an appeal, stating that review proceedings are not intended to give unsuccessful litigants a second opportunity to re-argue their cases.
“The purpose of the review jurisdiction is not to provide a back door by which unsuccessful litigants can seek to re-argue their cases,” the court stated.
Concluding that there was no new evidence warranting review and no error apparent on the face of the record, the appellate judges dismissed the appeal in its entirety.
The court ordered the appellants to pay the costs of the appeal to Barry Manza Mackenzie, bringing to an end a long-running family dispute over the Makueni property.
