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ELCDismissedWebuye CMC ELC Appeal (Memorandum of Appeal dated 29/04/2024)· [2025] KEELC 4569 (KLR)

Kenya Power and Lighting Company PLC v Wanyonyi (Environment and Land Appeal E019 of 2024) [2025] KEELC 4569 (KLR)

Environment and Land Court
12 June 2025
ECE.C. Cherono
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed Kenya Power's appeal as premature, confirming that striking out an application is procedural only—parties can simply file a fresh one.

What this practically means

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Executive summary

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The Appellant appealed against a ruling of Hon. P.Y. Kulecho delivered on 23/04/2024 in Webuye CMC ELC No. E030 of 2021, which struck out its application seeking stay of execution of a warrant of attachment and proclamations, setting aside of an ex-parte judgment of 04/08/2023, and leave to defend the underlying suit. The former suit had been filed by the Respondent, the registered owner of land parcel Ndivisi/Muchi/804, claiming trespass by the Appellant who had dumped electrical poles on the land; she sought declaratory orders, removal of the poles, and general damages. Judgment was entered against the Appellant ex-parte after it failed to attend hearings, and execution followed. The trial court struck out the Appellant's application, faulting the allegedly defective and ambiguous drafting of prayer two while indicating it was inclined to grant prayer three. On appeal, the judge applied the James Kanyiita Nderitu distinction between regular and irregular default judgments, observing that a judgment entered without proper service may be set aside ex debito justitiae. However, the court held that an order striking out an application is a procedural order that does not determine the issues on the merits and does not preclude the filing of a fresh application on the same issues. The parties had misinterpreted the striking out as a dismissal. The appeal was therefore premature and unmerited. It was dismissed with each party bearing their own costs, the parties being left free to move the trial court afresh.

Key legal issues

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01

Regular versus irregular default judgments

Holding

The court applied the James Kanyiita Nderitu distinction: an irregular judgment (no proper service) is set aside as of right, while a regular judgment is set aside at the court's discretion

Reasoning

The court adopted the Court of Appeal's framework, noting that a judgment entered where the defendant was not properly served is irregular and set aside ex debito justitiae because the party was condemned without notice; where service is proper, the setting aside is discretionary, considering reasons for default, delay, triable issues and prejudice.

p. 3
02

Effect of striking out an application

Holding

Striking out is a procedural order, not a determination on the merits; the appeal against such an order is premature

Reasoning

The trial court struck out the application for defective drafting of prayer two, without adjudicating the merits of the prayers. The judge held that striking out leaves the party free to file a fresh application in compliance with procedural and statutory law, and that the parties had misinterpreted the striking out as a dismissal. Hence the appeal was not merited.

p. 5

Legal principles established

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  • The striking out of an application does not amount to a determination on the merits and does not preclude a party from filing a fresh application on the same issues; such an order is not a dismissal in law, making an appeal against it premature
  • A default judgment entered against a defendant who was not properly served is irregular and must be set aside ex debito justitiae as of right, without regard to triable issues or delay

Court orders

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  1. 1.The appeal is dismissed for being premature
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure (Amendment) Rules, 2020Order 21 Rules 9A-9D
  • Civil Procedure RulesOrder 10 Rule 11
  • Energy ActSections 3(1), 10, 11(e),(f),(i),(k)&(l), 23, 24, 36, 40, 42, 224(2)(e)
  • Energy (Complaints and Disputes Resolution) Regulations, 2012Regulations 2, 4, 7 and 9
  • Constitution of Kenya, 2010Articles 25, 50, 159, 159(2)(c), 169(1)(d) and (2)
  • Fair Administrative Action Act, 2015Sections 9(2) and (3)

Cases cited (11)

  • Andrew Nthiwa Mutuku v Court of Appeal & 3 others
    [2021] eKLR
  • Law Society of Kenya v Martin Day & 3 others
    [2015] eKLR
  • SM v HGE
    [2019] eKLR
  • Pinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish & another
    [2018] eKLR
  • Abidha Nicholus vs. Attorney General & 7 others, National Environmental Complaints Committee (NEEC) & 5 others (Interested Parties)
    Civil Appeal No. 42 of 2021 (unreported)
  • Daniel Otieno Migore vs. South Nyanza Sugar Co. Ltd
    (2018) eKLR
  • James Kanyiita Nderitu & Another vs. Marios Philota Ghikas & Another
    (2016) Court of Appeal at Mombasa, Civil Appeal No. 6 of 2015 [2016] eKLR
  • Mbogo & Another v Shah
  • Patel v EA Cargo Handling Services Ltd
    [1975] EA 75
  • Chemwolo & Another v Kubende
    [1986] KLR 492
  • CMC Holdings v Nzioki
    [2004] 1 KLR 173
On appeal from
Webuye Chief Magistrate's Court (CMC ELC No. E030 of 2021)
Webuye CMC ELC No. E030 of 2021
Jurisdiction invoked
First appeal against a ruling of the Chief Magistrate's Court sitting as an Environment and Land Court (Webuye CMC ELC No. E030 of 2021)

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, "Kenya Power and Lighting Company PLC v Wanyonyi (Environment and Land Appeal E019 of 2024) [2025] KEELC 4569 (KLR)", Case Analysis (2025). Webuye CMC ELC Appeal (Memorandum of Appeal dated 29/04/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4569/eng@2025-06-12

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