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ELCDismissedNotice of Motion application dated 16th July 2024 (Originating Summons dated 9th November 2021)

Nimambeya v Mazzonetto (Enviromental and Land Originating Summons E003 of 2021) [2026] KEELC 3875 (KLR)

Environment and Land Court
16 June 2026
4,466 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Kwale refused to overturn an adverse possession judgment over Diani land, confirming that courts will not easily undo properly served judgments.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined a Notice of Motion dated 16th July 2024 by Orazio Mazzonetto, the Defendant in an adverse possession suit brought by originating summons dated 9th November 2021 over parcel Kwale/Diani/390. On 20th March 2024 the court had declared the Defendant's title extinguished by 12 years' adverse possession and directed registration of the Plaintiff, Mwanamkasi Hamisi Nimambeya, as absolute proprietor; she died on 24th April 2024 and her estate is represented by Hassan Bakari Gawayu. The Defendant sought to set aside the judgment, an injunction restraining dealings with the property, and leave to respond to the amended originating summons, contending he was never served and never instructed the firm of Kairu & Kimani Advocates who had acted for him. The court framed three issues: whether the judgment should be set aside, whether injunction conditions were met, and costs. It held the judgment was regularly entered: substituted service in the Daily Nation of 11th January 2022 and service by registered post were proved by affidavits of service; the Defendant entered appearance, filed grounds of opposition and a preliminary objection which was dismissed, making his denial of knowledge an afterthought, unaccompanied by any complaint to the Advocates Disciplinary Committee. The injunction was untenable, being post-judgment and overtaken by the Respondent's registration as proprietor. The application was dismissed with costs to the Plaintiff/Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant made a case for setting aside of the impugned Judgement of 20th March 2024
  2. 2.Whether the Applicant has met the conditions for granting an injunction
  3. 3.Who bears the costs of the application

Key legal issues

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01

Whether the judgment of 20th March 2024 was regularly entered and could be set aside

Holding

The judgment was regular: service was effected by substituted means under Order 5 Rule 17 and by registered post, supported by affidavits of service; the Applicant entered appearance, filed grounds of opposition and a preliminary objection, and the judgment notice was served. The claim of non-instruction of counsel was dismissed as an afterthought, and no complaint was lodged with the Advocates Disciplinary Committee.

Reasoning

The court distinguished regular from irregular default judgments, holding that only irregular judgments are set aside ex debito justitiae as of right. On the record, the Applicant participated in the suit through counsel, and the pleadings and substituted service in the Daily Nation of 11th January 2022 defeated the claim of ignorance of the suit. Perfection of the judgment by registration of the Respondent as proprietor weighed against disturbance.

p. 16
02

Whether the Applicant met the conditions for a temporary injunction

Holding

The court declined to reach the Giella conditions because the post-judgment injunction was untenable, having been overtaken by events: the Respondent had already been registered as proprietor and judgment had conclusively determined the parties' rights.

Reasoning

The court held that the injunction sought was post-judgment relief where rights had been conclusively determined by the 20th March 2024 judgment, not interlocutory protection of a pending claim. Since the Respondent was already registered as proprietor of Kwale/Diani/390, the relief was moot and the court found no need to assess prima facie case, irreparable harm or balance of convenience.

p. 22
03

Who bears the costs of the application

Holding

The Defendant/Applicant to bear the costs, as costs follow the event under Section 27 of the Civil Procedure Act.

Reasoning

Applying Section 27 of the Civil Procedure Act, the court held that costs compensate the Respondent for the trouble of defending the application and restoring her to her prior position. Since the application failed, costs were awarded to the Plaintiff/Respondent.

p. 24

Legal principles established

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  • A regularly entered default judgment may only be set aside in the court's discretion exercised to avoid injustice, whereas an irregularly entered one is set aside ex debito justitiae as a matter of right.
  • Access to justice requires that judgment creditors be able to enjoy the fruits of their judgments free of artificial obstruction.
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason orders otherwise.

Court orders

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  1. 1.THAT the application dated 16th July, 2024 be and is hereby dismissed for lacking merit.
  2. 2.THAT the Plaintiff/Respondent will have the costs of the application to be borne by the Defendant/Applicant herein.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 3A and Order 10 Rule 11, Order 9 Rules 9 and 10, Order 40 Rules 1 and 10, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010; Environment and Land Court Act

Relief refused

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Setting aside of the proceedings and judgment delivered on 20th March 2024 with its consequential decree and orders

Service was regularly effected by substituted service and registered post; the Applicant entered appearance and filed pleadings; allegations of lack of instructions to counsel were found to be an afterthought; the judgment was regular and no sufficient reason to disturb it was given.

p. 19

Temporary injunction restraining the Respondent from dealing with parcel KWALE/DIANI/390

The relief is post-judgment and has been overtaken by events since the Respondent has already been registered as proprietor of the suit property.

p. 22

Leave to respond to the amended originating summons by way of a Replying Affidavit

Not granted as the application was dismissed in its entirety.

p. 24

Costs

Costs of the application to be borne by the Defendant/Applicant, payable to the Plaintiff/Respondent

Quotable passages

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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 application dated 16th July, 2024 be and is hereby dismissed for lacking merit.
p. 24disposition - dismissal of the application
THAT the Plaintiff/Respondent will have the costs of the application to be borne by the Defendant/Applicant herein.
p. 24costs order
the prayer for setting aside the Judgement rendered on 20th March, 2024 is therefore unmeritorious, baseless and unfounded with no sufficient reason to back it up whatsoever.
p. 19setting aside refused - judgment regular
the prayer for temporary injunction seeking to restrain the Respondent from interfering with the suit property has been overtaken by events since the Respondent has already been registered as the proprietor of the suit property.
p. 22injunction overtaken by events
Access to justice cannot be said to have been ensured when persons in whose favour Judgments have been decreed by courts or tribunals of competent jurisdiction cannot enjoy the fruits of their Judgments due to road blocks placed on their paths by actions or inactions of others.
p. 18access to justice and enjoyment of fruits of judgment

Issues in the judgment

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material

The judgment is signed and dated at Kwale on 16th June 2026, a date after the directions issued on 27th November 2025; if this is a typographical error for 2025 it should be verified against the official record.

minor

The judgment inconsistently describes the parties, referring to the Defendant/Applicant as both 'Defendant/Applicant' and 'Respondent/Applicant'/'Applicant/Respondent' and to the Plaintiff as both 'Plaintiff/Respondent' and 'Plaintiffs/Respondents'.

minor

The date on which the Applicant instructed Advocates B J Sawe is inconsistently stated as May 2024 despite the judgment having been delivered on 20th March 2024 and the application filed 16th July 2024; the context suggests May 2025.

minor

The Respondent is stated to have died on 24th April 2024 yet the affidavit responses are described as filed by 'the Plaintiffs/Respondents', and the originating summons claimant is referred to in the judgment as 'the Applicant' in places.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nimambeya v Mazzonetto (Enviromental and Land Originating Summons E003 of 2021) [2026] KEELC 3875 (KLR)", Case Analysis (2026). Notice of Motion application dated 16th July 2024 (Originating Summons dated 9th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3875/eng@2026-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.