Mwawasi v Kenya National Highways Authority (KENHA) & another (Environment and Land Case E019 of 2025) [2026] KEELC 4137 (KLR) (6 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT VOI** **ELC CASE NO. E019 OF 2025** **GIBSON MNYIKA MWAWASIPLAINTIFF/APPLICANT** **VERSUS** **KENYA NATIONAL HIGHWAYS AUTHORITY** **(KeNHA)1ST DEFENDANT/RESPONDENT** **THE HON. ATTORNEY GENERAL2ND DEFENDANT/RESPONDENT** **R U L I N G** 1. Before the court is the Plaintiff/Applicant’s Notice of Motion dated 5th May 2026, brought under Articles 40 and 159 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, and Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010. The Applicant seeks, in substance, the following orders: 2. **Spent…** 3. **that this court be pleased to review and set aside its Ruling delivered on 12th March 2026, which dismissed the Applicant’s application for a temporary injunction;** 4. **that upon review, the court be pleased to grant an order of temporary injunction restraining the 1st Respondent, its agents and/or servants from interfering with the Applicant’s quiet possession of, and from encroaching upon, excavating or constructing on, the suit property known as L.R. No. 4637/7 (Grant No. CR. 46572), pending the hearing and determination of the suit;** 5. **that the court make such further and other orders as it may deem fit to meet the ends of justice; and** 6. **that the costs of the application be in the cause.** 7. The application is premised on the grounds set out on its face and is supported by the affidavit of the Applicant, **GIBSON MNYIKA MWAWASI**, sworn on 5th May 2026, together with the annextures thereto. **The Applicant’s Case** 1. The gravamen of the Applicant’s case is that he is the registered proprietor of the suit property, L.R. No. 4637/7 (Grant No. CR. 46572), measuring approximately 0.4047 hectares, situate at the Caltex/Total junction off the Nairobi–Mombasa Road (A8) within Voi town, Taita Taveta County. He avers that, by its Ruling of 12th March 2026, this court declined his application for a temporary injunction principally on the strength of cadastral survey plans (F.R. No. 120/86, F.R. No. 124/135 and F.R. No. 152/91) tendered by the 1st Respondent, which the 1st Respondent contended demonstrated that the suit property falls within the A8 road reserve. 2. The Applicant contends that he has since come by new and important evidence, namely a Technical Survey and Topographical Report prepared by Pimatech Land Surveyors and Consultants dated 25th March 2026 (“the Pimatech Report”), annexed as “GMM-3”, which, he says, establishes that the suit property is private land lawfully allocated to him on 5th May 1998, that it lies outside and clear of the road reserve, and that the allocation observed the prescribed road corridors of 120 feet for the highway and 200 feet for the feeder road to Voi. He further deposes that, following the Ruling, the 1st Respondent has assumed forceful possession of the suit property, demolished his structures, carted away his containers to an unknown location while levying daily storage charges, and laid water pipes through the land. He urges that this fresh material goes to the root of his title, that it warrants a review of the Ruling, and that the 1st Respondent’s conduct violates his rights under Article 40 of the Constitution. **The Respondents’ Case** 1. The application is opposed by both Respondents. The 1st Respondent filed Grounds of Opposition dated 7th May 2026, and the 2nd Respondent filed Grounds of Opposition dated 11th May 2026. 2. In summary, the 1st Respondent contends that the application is misconceived, incompetent, bad in law and an abuse of the process of the court; that the Applicant has not met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; that the application merely expresses dissatisfaction with the Ruling, which dissatisfaction cannot found a review; that the Applicant is improperly seeking to mount an appeal under the guise of a review; that the Pimatech Report is dated 25th March 2026 and was not in existence at the time of the hearing and determination of the application so as to be “discovered,” and could in any event have been obtained earlier through the exercise of reasonable diligence; that the court is functus officio; that the Applicant, having allegedly already preferred an appeal, is disentitled from pursuing a review concurrently; and that it is in the public interest, road safety and the rule of law that the application be dismissed with costs. 3. The 2nd Respondent, for its part, contends that the application has not met the threshold for review and ought to be dismissed, and that the orders sought would disrupt a government project intended to benefit the public. **The Parties’ Submissions** 1. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 25th June 2026. The 1st Respondent filed written submissions dated 2nd July 2026 through the firm of Robson Harris Advocates LLP, while the 2nd Respondent filed written submissions dated 30th June 2026 through the Hon. Attorney General. I summarise the rival submissions hereunder. **The Applicant’s Submissions** 1. In his submissions dated 25th June 2026, the Applicant reiterated the grounds on the face of the Motion and the depositions in the supporting affidavit. He urged the court to find that the Pimatech Report constitutes new and important evidence warranting a review of the Ruling of 12th March 2026, and that, in light of the said survey report, the court should set aside its earlier adverse position and reissue injunctive relief in protection of his proprietary rights. He further submitted that the public interest considerations advanced by the Respondents cannot override the constitutional protection of private property rights guaranteed under Article 40 of the Constitution. **The 1st Respondent’s Submissions** 1. In its submissions dated 2nd July 2026, the 1st Respondent identified two issues for determination: whether the Applicant has met the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; and who should bear the costs of the application. 2. On the first issue, counsel submitted that a review is a highly restricted, residual remedy which is neither an alternative right of appeal nor a mechanism to afford a disappointed litigant a second bite at the cherry. Reliance was placed on **Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] eKLR** and on **Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR**, where **Mativo, J. (as he then was)** observed that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. 3. Counsel submitted that the application rests exclusively on the first limb of Order 45 Rule 1, namely the alleged discovery of new and important evidence, and that the Pimatech Report fails the legal definition of newly discovered evidence on two distinct grounds: lack of prior existence and want of due diligence. It was submitted that, for evidence to qualify as newly discovered under Order 45, the underlying matter must have existed at the time of the hearing but remained hidden or inaccessible to the applicant despite his best efforts, and that a party cannot manufacture, commission or generate brand-new evidence after a ruling is delivered and claim to have “discovered” it. Counsel placed reliance on **Dennis Pritt Residents Association & 4 Others v Nairobi City County Government & 6 Others [2026] KEELC 2427 (KLR)**, where the court declined to treat a freshly commissioned survey report as newly discovered evidence, holding that a review is concerned with whether there existed material evidence at the time of the impugned decision which, despite due diligence, could not be produced, and is not a mechanism for introducing subsequent developments or building an entirely new case on facts that arose later. Counsel also cited **Nyong’o & Others v Attorney General (Civil Appeal 250 of 2019) [2026] KECA 200 (KLR)**, where the Court of Appeal reiterated that “discovery” in Order 45 is directed at matters which, despite the exercise of due diligence, were not within an applicant’s knowledge or could not be produced at the time of the original litigation. 4. On due diligence, counsel submitted that the Applicant’s supporting affidavit is completely silent on any steps taken to procure the survey report prior to the Ruling, the land, its boundaries and topography having at all times been accessible, and that the failure to place a surveyor on the ground before the Ruling amounts to litigation negligence which cannot be cured by way of review. Counsel relied on **Midega v Akudo [2024] KEELC 3386 (KLR)**, where the court held that where a party seeks review on the ground of new evidence but failed to act with due diligence prior to the determination of the matter, the court has no leeway to admit such evidence under the guise of sufficient cause. In counsel’s submission, the Applicant is in truth seeking to compel the court to re-evaluate the merits of its decision on the injunction, and his proper recourse, if dissatisfied, is an appeal to the Court of Appeal and not a review. 5. On the second issue, counsel invoked Section 27 of the Civil Procedure Act and submitted that costs follow the event; that the Applicant has dragged the 1st Respondent back to court through an unmeritorious and procedurally defective application; and that there being no exceptional circumstances warranting a departure from the standard rule, the application should be dismissed with costs to the 1st Respondent. **The 2nd Respondent’s Submissions** 1. In its submissions dated 30th June 2026, the 2nd Respondent identified two issues for determination: whether the Applicant has met the grounds for review; and whether the orders sought should be granted. 2. On the first issue, counsel set out the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules and submitted that the Applicant’s case rests on the limb of discovery of new evidence, the question for the court being whether the Applicant exercised due diligence to avail the alleged new evidence but genuinely failed. Counsel relied on **Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] KECA 594 (KLR)**, where the Court of Appeal emphasized that review is not a mechanism for challenging a judge’s reasoning or exercise of discretion unless the challenge is grounded on an error apparent on the face of the record or the emergence of new and important evidence that could not, with reasonable diligence, have been adduced earlier. Counsel further relied on **Kabansora Millers Ltd v Nyangena (Civil Appeal E665 of 2022) [2025] KEHC 4754 (KLR)**, where it was held that availing evidence that would have been within the knowledge of the applicant had due diligence been exercised cannot amount to new, discovered evidence, and cannot therefore be used to review the decision of a court. 3. Counsel submitted that the Plaintiff had every opportunity to commission and present a survey before the court but negligently failed to do so, and that his subsequent commissioning of a survey cannot amount to new evidence. It was further submitted that the matters canvassed by the Applicant whether the court should, in light of the survey report, set aside its earlier adverse position and reissue injunctive relief, and whether the public interest considerations advanced by the Respondents override the constitutional protection of private property rights are not grounds for review but matters that can only be raised on appeal, which appeal has not been preferred by the Applicant. 4. On the second issue, counsel submitted that while the court has jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the Applicant has not met the threshold placed by law to warrant a review of the Ruling of 12th March 2026, and urged the court to dismiss the application in order to protect the public interest, namely the construction of a public road for the use of the public. **Analysis and Determination** 1. I have considered the Notice of Motion, the supporting affidavit and the annextures thereto, the respective Grounds of Opposition, and the written submissions filed by the parties together with the authorities cited therein. The single substantive question that falls for determination is whether the Applicant has established a basis for the review of the Ruling delivered on 12th March 2026, within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The temporary injunction sought in prayer (c) arises for consideration only if that threshold is crossed. The question of costs will abide the outcome. 2. The jurisdiction to review is conferred by Section 80 of the Civil Procedure Act and is circumscribed by Order 45 Rule 1 of the Civil Procedure Rules. The grounds upon which a review may be granted are, in substance, three: first, the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time the order was made; secondly, some mistake or error apparent on the face of the record; and thirdly, any other sufficient reason. To these the rule adds the requirement that the application be brought without unreasonable delay. 3. It is by now well settled that a review is not an appeal in disguise, and that the power of review may not be exercised merely because the court that made the order may have taken a view of the law or of the facts which a party considers to be erroneous. Where the complaint is that the decision is wrong, the remedy lies in an appeal, not a review see **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR**. The same principle animates the decisions in **Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers (supra)** and **Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya (supra)**, both of which were cited by the Respondents and with which I respectfully agree. I assess the Applicant’s case against these established principles. ***(a) Discovery of new and important evidence*** 1. The Applicant rests his application squarely upon the Pimatech Report. The difficulty, which is to my mind insurmountable, is that the report is dated 25th March 2026 some thirteen days after the Ruling sought to be reviewed was delivered on 12th March 2026. Evidence that did not exist at the time the impugned order was made cannot, as a matter of plain language and of logic, be evidence that was “discovered,” or that “was not within [the Applicant’s] knowledge or could not be produced by him at the time when the order was made.” The ground postulates the unearthing of pre-existing material that lay beyond reach despite diligence; it does not extend to material brought into being after the decision. The Pimatech Report is not discovered evidence; it is freshly created evidence, and indeed evidence commissioned by the Applicant’s own advocates by their letter referenced SR/ELC/G/1/2025. 2. This conclusion accords with the recent decision in **Dennis Pritt Residents Association & 4 Others v Nairobi City County Government & 6 Others (supra)**, relied upon by the 1st Respondent, where the court declined to treat a survey report commissioned in the wake of an adverse decision as newly discovered evidence, observing that a review is concerned with whether there existed material evidence at the time of the impugned decision which, despite due diligence, could not be produced, and is not a mechanism for introducing subsequent developments. It equally accords with the reiteration by the Court of Appeal in **Nyong’o & Others v Attorney General (supra)** that “discovery” under Order 45 is directed at matters which, despite the exercise of due diligence, were not within an applicant’s knowledge or could not be produced at the time of the original litigation. 3. Even leaving that decisive point to one side, the Report is, on its own face, built upon source documents that were at all material times within the Applicant’s possession or knowledge: the letter of allotment of 1998 (reference 37173/XVII), the approved Part Development Plan, the deed plan and certificate of title, the official search, the banker’s cheques and payment receipts, and the Municipal Council of Voi correspondence of 2008. None of this is new. With the exercise of even modest diligence, the Applicant could have placed this very material and any expert analysis of it before the court at the hearing of his application dated 22nd December 2025. No explanation is offered for the failure to do so; indeed, as the 1st Respondent correctly observed, the supporting affidavit is silent on any steps taken to procure a survey before the Ruling. As was held in **Kabansora Millers Ltd v Nyangena (supra)**, cited by the 2nd Respondent, evidence that would have been within the knowledge of the applicant had due diligence been exercised cannot amount to new, discovered evidence; and as the court observed in **Midega v Akudo (supra)**, cited by the 1st Respondent, review is not a mechanism to cure a party’s want of diligence. The first ground of review accordingly fails on both limbs: the material is neither newly existing nor was it incapable of production with due diligence. ***(b) Mistake or error apparent on the face of the record*** 1. The Applicant points to no error apparent on the face of the record. An error apparent for the purposes of Order 45 must be one that is self-evident and that does not require an elaborate argument or a long-drawn process of reasoning on points upon which there may conceivably be two views. What the Applicant in truth invites is a re-evaluation of the evidentiary contest as to whether the suit property lies within the road reserve a contest the court resolved against him on the material then before it by the introduction of a contrary expert opinion. That is not the correction of a self-evident error; it is an attempt to relitigate the merits. This ground is not made out. ***(c) Any other sufficient reason*** 1. The phrase “any other sufficient reason” has long been construed ejusdem generis with the two specific grounds that precede it: the reason relied upon must be one analogous to the discovery of new evidence or to an error apparent on the record. The Applicant’s dissatisfaction with the outcome of the Ruling does not meet that standard. Nor do his allegations concerning the 1st Respondent’s conduct after the Ruling the asserted demolition of structures, removal of containers and laying of water pipes. Those allegations, grave as they are pleaded to be, are directed at events said to have occurred after the order under review, and they cannot bear upon the correctness of that order at the time it was made. If well-founded, the Applicant’s grievances on that score may be ventilated in the main suit, or in such other proceedings as he may be advised to take; they do not supply a sufficient reason to reopen a concluded interlocutory ruling. 2. I should add, for completeness, that the invocation of Article 40 of the Constitution does not alter this analysis. The constitutional protection of property rights is not in doubt; but it does not lower the threshold prescribed by Order 45 for the review of a judicial decision, nor does it convert a review into a vehicle for the re-argument of an interlocutory application. The contest which the Applicant seeks to reopen including the question whether the public interest in the road project should yield to his asserted proprietary rights is, as the 2nd Respondent correctly submitted, the proper province of an appeal or of the trial of the main suit, and not of a review. ***(d) The contention of a pending appeal*** 1. The 1st Respondent contends that the Applicant has already preferred an appeal and is thereby precluded from pursuing a review concurrently. No evidence of any such appeal was placed before the court. I therefore place no reliance on that contention, and it is unnecessary to determine it, the application failing on the threshold grounds already addressed. **The Injunction Sought** 1. Prayer (c), seeking an order of temporary injunction, is by its own terms contingent upon the court first granting the review prayed for (“upon review, the Court be pleased to grant …”). The review having been declined, the prayer for an injunction does not arise and falls away with it. **Disposition** 1. In the result, and for the reasons given, I find that the Applicant has not established any of the grounds for review prescribed by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Notice of Motion dated 5th May 2026 is devoid of merit. 2. On costs, while costs ordinarily follow the event as provided under Section 27 of the Civil Procedure Act, the award of costs remains a matter within the discretion of the court. Having regard to the nature and circumstances of the dispute, which pits the Applicant’s asserted proprietary rights against a public road project, I consider it just and appropriate that each party bears its own costs of the application. 3. Accordingly, this Court makes the following orders: 4. **The Notice of Motion dated 5th May 2026 is hereby dismissed.** 5. **Each party shall bear its own costs of the application.** **DELIVERED VIRTUALLY, DATED and SIGNED this 6TH day of JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Mwombe for the Plaintiff/Applicant** **Mr. Cheruiyot for the 1st Defendant/Respondent** **N/A for the 2nd Defendant/Respondent** **Court Assistant; David Ngoosa.**