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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 8366 (KLR)

Kenya Power & Lighting Co Ltd v Rosewa Agencies Limited (Environment and Land Case 1048 of 2014) [2025] KEELC 8366 (KLR)

Environment and Land Court
24 November 2025
3,646 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 a bid to review a 2023 trespass judgment, confirming parties cannot raise evidence they previously denied in their pleadings.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 1st November 2023 under Order 45 Rules 1, 2 & 3, Order 22 Rule 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking review and setting aside of a judgment delivered on 22nd February 2023 in favour of the Plaintiff in a trespass suit, together with stay of execution. The Applicant, through the affidavit of Justus Ododa, contended that it had on 4th September 2023 discovered a 1975 wayleave agreement, held in Government Survey archives, which authorised it to enter the suit property to install electricity lines, rendering the trespass claim unsustainable. The Plaintiff/Respondent opposed, asserting that the wayleave concerned different parties and a different parcel of land (LR No. 11407, a freehold) from the suit property (LR No. 18697/4, a leasehold), that the Defendant had denied in its defence any trespass or installation of poles and never pleaded any wayleave, and that the application was filed after an inordinate delay of eight months. Framing a single issue - whether the judgment of 22nd February 2023 should be reviewed or set aside - the court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1. It held that parties are bound by their pleadings and the Applicant could not rely on evidence it had initially denied; that no error apparent on the face of the record had been pinpointed; that no sufficient reason for review was demonstrated; and that the delay of over eight months was unreasonable. The application was dismissed with costs to the Respondent on 24th November 2025.

Key legal issues

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01

Whether the discovery of the 1975 wayleave agreement amounts to new and important matter or evidence justifying review

Holding

No discovery of new matter was demonstrated; the wayleave was never pleaded and the Applicant had denied trespass and erection of poles in its defence

Reasoning

The court found the Applicant bound by its defence in which it denied trespass and denied erecting electric poles, and in which no wayleave was raised. Allowing review would require amendment of pleadings and reopening of the case. The purported wayleave also related, on the Respondent's evidence, to a different parcel (LR No. 11407) than the suit property (LR No. 18697/4). The court concluded the Applicant could not rely on evidence it had initially denied.

p. 6
02

Whether there is an error apparent on the face of the record

Holding

No error apparent on the face of the record was pinpointed

Reasoning

Relying on Nyamogo & Nyamogo v Kogo and Timber Manufacturers and Dealers v Nairobi Golf Hotels, the court applied the principle that an error apparent on the face of the record must be obvious, self-evident and not require elaborate argument; a mere erroneous decision or a possible alternative view is not such an error. The Applicant identified no such error.

p. 7
03

Whether there is sufficient reason and whether the application was filed without unreasonable delay

Holding

No sufficient reason was shown and the delay of over eight months between judgment and application was unreasonable

Reasoning

The judgment was delivered on 22/02/2023 and the application filed on 1st November 2023. Following John Agina v Abdulswamad Sharif Alwi, the court held that unexplained delay is not sufficient reason for review, and found the duration 'far from reasonable'. No other sufficient cause was demonstrated under the Official Receiver and Liquidator v Freight Forwarders Kenya Ltd standard.

p. 7

Legal principles established

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  • Parties are bound by their pleadings; a party cannot rely on evidence it initially denied in its defence
  • An applicant for review must demonstrate discovery of new and important matter not producible with due diligence, an error apparent on the face of the record, sufficient reason, and filing without unreasonable delay
  • Unreasonable delay in bringing an application for review defeats it

Court orders

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  1. 1.The Notice of Motion dated 1st November 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rules 1, 2 & 3
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Law of Contract ActSection 3
  • Land Registration ActSections 25 and 28
  • Land Registration ActSection 143(3)
  • Energy ActSection 176
  • Government Land ActSection 86
  • Evidence ActSection 80

Cases cited (16)

  • London Distillers (K) Ltd v. Cabinet Secretary, Ministry of Education & Four Others
    (2022) eKLR
  • Peter Mwangi Kabue vs Rural Electrification Authority
    (2018) eKLR
  • Vumacam (Pty) Ltd vs Johannesburg Roads Agency & 3 others
    (14867/20) (2020) ZAGPJHC 18
  • Kenya Power & Lighting Co. Ltd v Kipevu Inland Container EPZ Ltd
    (2018) eKLR
  • Kenya Power & Lighting Co. Ltd v Mosiara Trading Co Ltd
    (2016) eKLR
  • Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others
    (2021) eKLR
  • Republic v Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR
  • Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others
    (2017) eKLR
  • Outa v Okello & 3 others (Petition 6 OF 2014)
    (2014) (2017) KESC 25 (KLR) (24 February 2017) (Ruling)
  • Frdrick Otieno Outa v Jared Odoyo Okello & 3 others
    (2017) eKLR
  • Northern Indian Cetters (India) v Ltd Governor of Delhi
    1980 AIR 674
  • Benjoh Amalgamated Limited & Another Vs Kenya Commercial Bank Limited
    (2014) eKLR
  • Nyamogo & Nyamogo Vs Kogo
    (2001) EA 170
  • Timber Manufacturers and Dealers Vs Nairobi Golf Hotels (K)
    HCCC No. 5220 of 1992
  • The Official Receiver and Liquidator Vs Freight Forwarders Kenya Ltd
    (2000) eKLR
  • John Agina Vs Abdulswamad Sharif Alwi
    C. A Civil Appeal No. 83 of 1992
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Order 45 Rules 1, 2 & 3 and Order 22 Rule 22 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act

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 & Lighting Co Ltd v Rosewa Agencies Limited (Environment and Land Case 1048 of 2014) [2025] KEELC 8366 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8366/eng@2025-11-24

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