Kenya Power & Lighting Co Ltd v Rosewa Agencies Limited (Environment and Land Case 1048 of 2014) [2025] KEELC 8366 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the discovery of the 1975 wayleave agreement amounts to new and important matter or evidence justifying review
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
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.
Whether there is an error apparent on the face of the record
No error apparent on the face of the record was pinpointed
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.
Whether there is sufficient reason and whether the application was filed without unreasonable delay
No sufficient reason was shown and the delay of over eight months between judgment and application was unreasonable
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 1st November 2023 is dismissed
- 2.Costs of the application awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.