Chairperson, Secretary and Treasurer of Diani Scheme Resource Centre CBO v Thiga (Enviromental and Land Originating Summons E008 of 2023) [2025] KEELC 3310 (KLR)
The bottom line
#A Kenyan court set aside a default land judgment, ruling that registered owners deserve a chance to be heard even after proper service.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 18th December 2024 has any merit
- 2.Whether the Applicant has met the threshold for grant of orders setting aside the Ex-Parte Judgement by this court
- 3.Whether John Mungai Kibe should be enjoined in this suit
- 4.What orders should issue by the court
- 5.Who bears the costs of the application
Key legal issues
#Adequacy of substituted service as a basis for setting aside ex-parte judgment
Substituted service by newspaper publication in the Daily Nation and People's Daily, ordered by the court, was proper service and the assertion of non-service was disregarded
The originating summons was filed on 2nd May 2023 and the applicant could not be traced, so the court ordered substituted service under Order 5 Rule 17. The replying affidavit confirmed service twice by publication. The court held the advertisements constituted documentary evidence of proper service, rejecting the applicant's claim that service was irregular.
Whether the interest of justice justified setting aside the ex-parte judgment despite regular service
Because the suit properties are registered in the names of the applicant and John Kibe, it was in the interest of justice to grant them an avenue to ventilate their case
Relying on Sangram Singh and Wachira Karani, the court held that parties should not be condemned unheard and should be allowed a proper opportunity to put their cases on the merits. Although the applicant's defence on the merits could not be re-evaluated at this stage, the propriety of the titles raised triable considerations warranting a hearing.
Joinder of John Kamau Kibe as a necessary party post-judgment
Kibe was joined because he was the registered owner of Kwale/Diani S.S/5190 from 10th November 2022, was not covered by the substituted service, and deserves to be heard
Under Order 1 Rule 10(2), the court may add any person whose presence is necessary to adjudicate all questions in the suit. Citing Mudembei v Malembi and Mary Beach Limited v Attorney General, the court applied the exception permitting post-judgment joinder where adverse orders issued against a party never given notice or heard.
Interim preservation of the suit properties
Status quo ordered to be maintained, with the respondents remaining in possession until the suit is determined
The court found the respondents currently in occupation and noted allegations of violence when they were asked to vacate. Following Mugah v Kunga and the authorities on status quo orders, the court preferred preservation of the existing state of affairs over an injunction.
Legal principles established
#- Setting aside an ex-parte interlocutory judgment is a judicial discretion to be exercised on such terms as are just
- A court may join a party post-judgment in exceptional circumstances, such as where adverse orders issued against a party never given notice or heard
- Change of advocate post-judgment requires leave of court or consent, under Order 9 Rule 9, in mandatory terms
Court orders
#- 1.The Notice of Motion dated 18th December 2024 found meritorious and allowed
- 2.The law firm of Messrs. Joram Wangombe & Associates advocates allowed to come on record on behalf of the Applicants after the delivery of judgment on 27th September 2024
- 3.The ex-parte judgment entered on 27th September 2024 and decree issued on 1st October 2024 set aside
- 4.John Kamau Kibe joined as a Respondent in the suit in his capacity as registered owner of Kwale/Diani S.S/5190
- 5.Leave granted to the Respondent/Applicant to file a Replying Affidavit in response to the Originating Summons out of time
- 6.Order of status quo over the suit properties to the extent that the Respondents remain in possession until the suit is heard and determined
- 7.Leave of 14 days to the Applicants to file and serve further documents in support of their case
- 8.Mention on 2nd July 2025 for pre-trial conference under Order 11 and directions under Order 37 Rules 13, 16 and 18, and hearing on 3rd November 2025
- 9.Costs of the application awarded to the Respondents, borne by the Applicant Wallace Mungai Thiga
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 1, Order 10 Rule 11, Order 1 Rule 3 and 9, Order 40 and Order 50 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21
Relief refused
#Consolidation of Kwale ELCLC E061 of 2024 with the instant suit
Issues of ownership of the suit properties will be canvassed in the instant suit and two matters over similar subject matters cannot run concurrently in the same court
Temporary injunction restraining alienation or dealing with the suit properties
The court found status quo orders more appropriate since the respondents are currently in occupation
Costs
Costs of the application awarded to the Respondents, to be borne by the Applicant – Mr. Wallace Mungai Thiga
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the honourable court is hereby pleased to set aside the Ex - Parte Judgement entered against the Respondent/Applicant on 27th September 2024 and decree issued on 1st October 2024.
That the person known as John Kamau Kibe is hereby joined as the Respondent in this suit in his capacity as the registered owner of Kwale/Diani S.S/5190
That an order of Status quo on the suit properties to be maintained to the extent that the Respondents shall remain in possession of the suit properties until the suit is heard and determined.
[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard
One such exception is where a matter has been determined and adverse orders have been issued against a party who was neither given notice of the suit nor heard on the issue in dispute.
That the costs of this application be awarded to the Respondents to be borne by the Applicant – Mr. Wallace Mungai Thiga.
Issues in the judgment
#The court frames issue (c) as whether 'John Mungai Kibe' should be enjoined, while the prayer, affidavit and final order refer to 'John Kamau Kibe' – the joinder issue heading appears to misname the party
The judgment states the originating summons were filed on 2nd May 2023 'way after Judgement was entered', which is internally inconsistent since judgment was delivered on 27th September 2024
The applicant's pleaded claim against 'John Mungai Kibe'/John Kamau Kibe as registered owner is confused with whether the party was a necessary party before judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chairperson, Secretary and Treasurer of Diani Scheme Resource Centre CBO v Thiga (Enviromental and Land Originating Summons E008 of 2023) [2025] KEELC 3310 (KLR)", Case Analysis (2025). Notice of Motion dated 18th December 2024 (arising from Kwale adverse possession suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3310/eng@2025-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.