Kibathi v Mchawa & 18 others (Environment and Land Miscellaneous Case E047 of 2025) [2026] KEELC 1579 (KLR)

3. The amended application is not supported by any afidavit attached to it, but this court presumes that it is supported by the afidavit of Emmanuel Katoi dated 26th June 2025. However, it is categorical that it is also supported by further afidavit of the same deponent, dated 14th October 2025. 4. The cumulative gist of all the supporting afidavits is that the deponent has the authority of the 2nd ,4th ,7th ,9th ,10th ,11th ,12th ,14th and 19th defendants to swear and plead for them and represent them this matter; that the afidavit of service filed by Samson B. Kimbeja sworn on 16th May 2025 on the basis of which the application dated 7th May 2025 was granted contains incorrect statements. 5. The deponent denies that he and his co-defendants were at the Chief’s Ofice on 15th May 2025 when it is alleged that they were served; that the court inadvertently granted the application dated 7/5/25 on the basis that the defendants did not oppose the same while there is on record replying afidavits, one sworn on 26th June 2025 and filed on the 13th July 2025 by one Emmanuel Katoi; 6. It is also averred that the 1st defendant herein, Francis Shida Mchawa on behalf of himself and with the authority of the 4th , 5th , 6th, 12th ,17th and 19th defendants also swore a replying afidavit in response to the application dated 7th May 2025; that since the court arrived at the decision in the ruling without considering the said responses, it can suo moto and ex debito justiciae, set aside a ruling and orders issued on 25th September 2025 on the basis that the defendants were condemned unheard, that the orders made on 25th September 2025 are drastic and negatively afiect the parties resident on the suit property and that prayer number 3 granted in the application contained serious restrictive and drastic orders against the afiected parties; 7. It is urged that the prayer no 3 sought orders directing the defendants not to enter, cultivate or farm or carry out any activities on the land which they had lived on for a long period of time even before hearing of the suit has taken place; that in opposition to the application dated 7th May 2025, the applicant filed a replying afidavit on 30th June 2025 which had been sworn on 26th June 2025, and it was served on the other side but the court did not consider that afidavit in its decision made on the application and the applicants have been condemned unheard; that a motion was filed to arrest the ruling scheduled for 25th September 2025 and the court slated the matter for hearing or further directions on 25th September 2025 when the ruling was eventually delivered. 8. The application is opposed by the plaintifi through his sworn afidavit dated 17th December 2025. The gist of that afidavit is that the defendants were served with Summons to Enter Appearance, plaint and the application dated 7/5/25 on 15th May 2025 at the Assistant Chiefs Ofice in Misufuni; that on 26th May 2025 Makworo Advocates LLB served counsel for the plaintifi with a Notice of Appointment dated 16th June 2023 on behalf of the 1st ,2nd ,3rd ,4th ,6th ,7th ,9th ,10th ,11th ,14th, 15th and 19th respondents. Notice of Change of advocates to the current firm of GKO Advocate LLP was filed on 13th June 2025 on behalf of the same respondents plus the 5th 8th 12th, 13th, 16th 17th and 18th respondents; that on the 16th June 2025 the plaintifi’s advocates were again served with a notice of appointment by Makworo advocate LLP on behalf of the 1st ,2nd ,3rd ,4th ,6th ,7th ,9th ,10th ,11th ,14th ,15th and 19th respondents respectively. 9. It is further averred that on 20th June 2025, the plaintifi’s advocates were served with a notice of change of advocates dated 16th June from Makworo Advocates LLP on behalf of the 1st ,4th ,5th ,6th ,9th ,12th ,17th and 19th respondents. 10. It is stated that the above notices filed by two law firms are clear indicators to the court that service was afiected upon all the defendants; that however only the 4th ,5th ,9th ,12th ,17th and 19th defendants filed a response to the application in question and therefore the orders sought should not be granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1579/eng@2026-03-12 2

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11. The application was disposed of by way of written submissions. The defendants filed submissions dated 20th November 2025 and the Plaintifi filed submissions dated 17th December 2021. This court has considered those submissions in the preparation of this ruling. Analysis and determination 12. The court has been asked to set aside orders made on 25th September 2025. The issues that arise for determination in the present application are follows: a. Whether the defendants were served with the application dated 7th May 2025; b. Whether the orders made on 25th September 2025 ought to be set aside the application reheard; c. Who ought to bear the costs of the application? 13. For the purposes of setting aside the court’s decision of 25th September 2025, it matters not whether only all or some of the defendants were represented and the reason will appear in the latter part of the present ruling. It is apparent that there may have been a confusion or an actual dispute relating to representation. However, the record is clear that two firms of advocate appeared in this matter on behalf of a section of the defendants: Makworo Advocate LLP and GKO Advocates LLP. The only difierence in representation is that GKO Advocates LLP represented additional defendants. 14. Regarding the first issue, Samson B, Kimbeja the process server, was not summoned at the instance of the defendants for cross-examination, and his evidence still stands unshaken: that service was efiected on all the defendants while at the Assistant Chief’s ofice. 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. That knowledge cannot in the context described above be attributed to a miracle or mere coincidence but to actual service upon the defendants. The court therefore finds that the defendants were therefore served and the ground of non-service claimed by the defendant cannot and should not be relied on to seek a setting aside of the orders made on 25th September 2025. 15. Regarding the second issue, I have examined the ruling dated 25th September 2025. It contains not typographical errors that escaped editing, but and also an error on the face of the record to the efiect that the 5th ,8th ,12th ,13th ,16th ,17th and 18th defendants had claimed not to be in occupation of the suit property; the correct position is that it is the 4th ,5th ,9th ,12th ,17th ,and 19th defendants who were claiming in their replying afidavit that the 5th ,8th ,12th ,13th ,16th ,17th and 18th defendants do not occupy the suit property. 16. It appears that the defendants represented by Mr Makworo were trying to point out other persons as not being in occupation, but they ended up pointing out some amongst their own group 5th , 12th , and 17th , which appears to be a mistake until clarified otherwise. 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. On their part the 4th 5th 9th 12th 17th and 19th defendants had already in the same afidavit opposed the application on the ground that the parcel of land has over 106 occupants some of whom who have lived on the land for a period of up to 50 years. 17. 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1579/eng@2026-03-12 3

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18. 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. I find that the prayer no (f) is premature while the others are either spent or undeserved. 19. This court also must observe that the application dated 7th May 2025 last came before it on 27th May 2025 when it was given a ruling date of 25th September 2025. The court never sat in the month of July and August. When the application dated 26th June 2025 came before Makori J, he ordered that the same be placed before me court for directions on 25th September 2025, the very date of the ruling. However, the orders he made never came to the attention of this court before that ruling date and the ruling was delivered as scheduled. The new application and its supporting afidavit were also not brought to the attention of this court before that date. That was the reason why the court delivered the ruling dated 25th September 2025 despite the pendency of the amended application dated 14th October 2025. Parties shall ensure readiness for highlighting submissions on the application dated 7/5/25 on 22/4/2026. 20. The costs of the present application shall be in the cause. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 12TH DAY OF MARCH, 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1579/eng@2026-03-12 4

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