Kibathi v Mchawa & 18 others (Environment and Land Miscellaneous Case E047 of 2025) [2026] KEELC 1579 (KLR)
The bottom line
#The court set aside an injunction granted over Mambrui plot 208 because it was based on a factual error, but ruled the defendants had been properly served.
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 defendants were served with the application dated 7th May 2025
- 2.Whether the orders made on 25th September 2025 ought to be set aside and the application reheard
- 3.Who ought to bear the costs of the application
Key legal issues
#Whether the defendants were served with the application dated 7th May 2025
Service was proved; the process server's affidavit stood unshaken as the defendants did not summon him for cross-examination, and the filing of notices of appointment within days of the alleged service corroborated actual service
The process server, Samson B. Kimbeja, was not summoned for cross-examination, so his affidavit evidence remained unshaken. The court reasoned that the filing of a notice of appointment of advocates dated 26th May 2025, only about ten days after the alleged service on 15th May 2025, and subsequent notices of appointment and change of advocates by two firms, demonstrated that the defendants had knowledge of the suit, attributable to actual service rather than coincidence.
Whether the orders of 25th September 2025 ought to be set aside
Yes - the ruling contained an error on the face of the record as to which defendants claimed non-occupation, and since the injunction was granted on that erroneous basis, it had to be set aside ex debito justitiae for rehearing
The ruling of 25th September 2025 wrongly recorded that the 5th, 8th, 12th, 13th, 16th, 17th and 18th defendants had admitted not occupying the suit property, whereas in truth it was the 4th, 5th, 9th, 12th, 17th and 19th defendants who asserted that those others did not occupy the land. There was therefore no express admission by those defendants. Because the injunction rested on that error, the court was bound to set it aside, notwithstanding the finding that service was properly effected.
Legal principles established
#- A court may, ex debito justitiae, set aside its own orders where the basis on which they were granted was erroneous
- An unchallenged affidavit of service, coupled with prompt subsequent steps by the party (such as filing a notice of appointment of advocates shortly after alleged service), establishes service
Court orders
#- 1.The Amended Notice of Motion dated 14th October 2025 is granted in terms of prayer number (d) only, setting aside the ruling and orders of 25th September 2025 to pave the way for rehearing of the application dated 7th May 2025
- 2.Parties to ensure readiness for highlighting submissions on the application dated 7/5/25 on 22/4/2026
- 3.Costs of the present application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent power of the court to set aside its own orders ex debito justitiae (inherent jurisdiction; no specific constitutional or statutory provision cited)
Relief refused
#Declaration that the applicant and 11 other applicants were not served with summons, plaint or other court documents
The court found service was effected; the process server's unchallenged affidavit of service and the prompt filing of notices of appointment evidenced service
Prayer (f) - dismissal of the suit as against the 3rd defendant and the other applicants
Found premature
Setting aside on the ground of non-service
Ground of non-service rejected; the setting aside rests instead on the error of fact in the ruling of 25th September 2025
Costs
The costs of the present application shall be in the cause.
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.
In the light of the foregoing, since the whole basis on which the application dated 7th May 2025 was granted was erroneous, this court must set aside the ruling and order made on 25th September 2025 ex debito justitiae.
The filing of notice of appointment of advocates dated 26th May 2025, a mere 10 days after the date of alleged service, suggests that the defendants got to know of this suit soon after the date of alleged service.
There was therefore no express admission on the part of the 5th 8th, 12th, 13th ,16th, 17th and 18th respondents that they do not occupy the suit property.
The application dated 14th October 2025 therefore has partial merit and the same is hereby granted in terms of prayer numbers (d) only to pave the way for the rehearing of the application dated 7th May 2025.
The costs of the present application shall be in the cause.
Issues in the judgment
#The judgment states the plaintiff's submissions are 'dated 17th December 2021' while elsewhere referring to the plaintiff's sworn affidavit dated 17th December 2025; the 2021 date appears to be a typographical error given the 2025 chronology of the matter
The judgment recites that the plaintiff averred service of a 'Notice of Appointment dated 16th June 2023' which is inconsistent with the 2025 chronology of the suit and likely a typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibathi v Mchawa & 18 others (Environment and Land Miscellaneous Case E047 of 2025) [2026] KEELC 1579 (KLR)", Case Analysis (2026). Not stated in the judgment (suit concerning plot number 208 - Mambrui, Kilifi County). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1579/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.