Mwawasi v Kenya National Highways Authority (KENHA) & another (Environment and Land Case E019 of 2025) [2026] KEELC 4137 (KLR)
The bottom line
#A Kenyan landowner's bid to reopen an injunction ruling failed because evidence created after the ruling doesn't count as new evidence for review.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter under Order 45 Rule 1
The Pimatech Report dated 25th March 2026 post-dates the Ruling of 12th March 2026 and is therefore not 'discovered' evidence, and it was built on documents the Applicant always possessed and could have produced with due diligence
The court held that Order 45 postulates unearthing pre-existing material that was beyond reach despite diligence, not material created after the decision. Further, the Report's source documents (allotment letter, deed plan, title, searches) were always in the Applicant's possession, and the supporting affidavit was silent on steps taken to procure a survey before the Ruling, amounting to litigation negligence.
Error apparent on the face of the record
No error apparent was demonstrated; the Applicant was in truth inviting a re-evaluation of the evidentiary contest on the road reserve issue
An error apparent must be self-evident and require no elaborate argument. The Applicant sought to relitigate the merits by introducing a contrary expert opinion, which is not the correction of a self-evident error.
Any other sufficient reason
Dissatisfaction with the outcome and post-Ruling conduct of the 1st Respondent do not constitute a sufficient reason, being ejusdem generis with the two specified grounds
The phrase 'any other sufficient reason' is construed ejusdem generis with discovery of new evidence or error apparent. Post-order events (demolition, removal of containers, laying of pipes) cannot bear on the correctness of the order when made, though they may be ventilated in the main suit.
Relevance of Article 40 constitutional property rights to review
Article 40 protection does not lower the Order 45 threshold or convert review into a vehicle for re-arguing an interlocutory application
The court held that the contest over whether public interest in the road project should yield to proprietary rights belongs to an appeal or the trial of the main suit, not a review. The dismissal of the injunction application earlier meant the Applicant's proper recourse lies elsewhere.
Legal principles established
#- Evidence that did not exist at the time the impugned order was made cannot constitute discovered evidence under Order 45 Rule 1; review extends only to pre-existing material unearthed despite diligence
- Review is not an appeal in disguise; complaints that a decision is wrong are matters for appeal
- Constitutional protection of property rights does not lower the threshold for review
Court orders
#- 1.The Notice of Motion dated 5th May 2026 is hereby dismissed
- 2.Each party shall bear its own costs of the application
- Jurisdiction invoked
- Articles 40 and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mwawasi v Kenya National Highways Authority (KENHA) & another (Environment and Land Case E019 of 2025) [2026] KEELC 4137 (KLR)", Case Analysis (2026). ELC No. E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4137/eng@2026-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.