https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3875

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC (OS) NO. E003 OF 2021** **MWANAMKASI HAMISI NIMAMBEYA…………………………….PLAINTIFF/RESPONDENT** * **VERSUS -** **ORAZIO MAZZONETTO………………..DEFENDANT/APPLICANT** **RULING** 1. **Introduction** 2. The Ruling by this Honourable court relates to a Notice of Motion application dated 16th July 2024. It was instituted by *ORAZIO MAZZONETTO,* the Defendant/Applicant herein. The application was brought pursuant to the provisions of Sections 1A, Order 10 Rule 11, 3A of the Civil Procedure Act, Cap 21, Order 9 Rule 9 and 10, Order 40 Rules 1a and 10[a][a], Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 3. The application sought for injunctive orders against the Respondent in dealing with the suit property in any way whatsoever despite the judgement being in her favour and also for orders to set aside the Judgement delivered on 20th March, 2024. 4. Upon service, the application was opposed through a Replying Affidavit sworn by *HASSAN BAKARI GAWAYU* an administrator to the estate of the Respondent Mwanamkasi Hamisi Nimambeya who as fate would have it, passed away on 24th April 2024. The contents of the affidavit will be highlighted later in this ruling. 5. Briefly, it is instructive to point out that, the Plaintiff/Respondent herein instituted this suit before this Court vide originating summons dated 9th November 2021. It was for an order of land adverse possession claim over the all that parcel of land known as Land Reference Numbers Kwale/Diani/390 (Hereinafter referred to as “The Suit Land”) which is registered in the names of the Defendant/Applicant herein. 6. Procedurally, after hearing the case to its logical conclusion, the Honourable Court delivered its Judgement on 20th March, 2024. It granted Judgement in favour of the Plaintiffs suit in the following terms:- 7. ***A declaration that the title deed of Orazio Mazzonetto of all that parcel of land registered as Kwale/Diani/390 has been extinguished by the Applicant’s adverse possession thereof for a period of 12 years hereby issues.*** 8. ***An order hereby directing the Land Registrar Kwale land registry to register the Applicant Mwanamkasi Hamisi Nimambeya as the absolute proprietor of the land comprised in the land parcel number Kwale/Diani/390*** 9. ***Costs to the Applicant.*** 10. Being aggrieved by the said Judgement, the Defendant/Applicant opted to institute this application. 11. **The case by the Defendant/Applicant** 12. The Defendant/Applicant sought for the following orders:- 13. ***Spent.*** 14. ***Spent.*** 15. ***Spent.*** 16. ***That an order of injunction be and is hereby issued restraining the Applicant/Respondent by herself, her servants and/or agents from selling, transferring, charging, subdividing or otherwise dealing in or parting with ownership or possession of the property known as land parcel no KWALE/DIANI/390 pending the hearing and determination of this suit.*** 17. ***Spent.*** 18. ***That any transaction, sale, transfer, subdivision, charge, lease or agreement commenced by the Applicant/Respondent in relation to the property be ceased or discontinued pending the hearing and determination of the suit.*** 19. ***That the Honourable Court be pleased to set aside the proceedings in this case together with the judgement delivered on the 20th day of March, 2024 and the decree and orders consequential thereto.*** 20. ***That leave be and is hereby granted to the Respondent/Applicant to respond to the amended originating summons herein by way of a Replying Affidavit in terms of the attached draft marked “A”*** 21. ***That costs of this application be provided for.*** 22. The application was set upon grounds listed on its face and the supporting affidavit of ORAZIO MOZZONETTO the Respondent/Applicant herein. He averred as follows that:- 23. In the year 2009 he was duly registered as the absolute proprietor of the suit property herein. 24. The deponent stated that in May, 2024 he instructed his Advocates B J Sawe to confirm consolidation of the map of the land pursuant to his successful protest before the Land Registrar against the sub - division of the suit property by unknown persons. 25. The Applicant together with his counsel on record was summoned to the lands office where the Land Registrar informed him that titles to the suit property with regards to the contested sub divisions had been returned to the Land Registrar but proprietorship of the suit parcel had been transferred to the Respondent Mwanamkasi Hamisi Nimambeya. 26. The deponent learnt of the Judgement of this court which had granted the Respondent the suit parcel and was alarmed to learn that he had been represented by a firm of Advocates in the matter. 27. The Applicant stated that this fact form the basis for the prayer for review and setting aside the Judgement of the court issued on 20th March, 2024. 28. The Applicant stated that he had sufficient grounds to warrant setting aside of the Judgement and Decree and that his purported representation was fraudulent and crafted with the intent to mislead the court into awarding the judgement against him. 29. According to the Applicant, he was never served with any pleadings to make him aware of the case, that the Law firm of Messrs. Kairu Kimani & Co Advocates was never appointed by him to act on his behalf in the matter and that the firm was not known to him. 30. He stated that the Judgement had been obtained through deceit, misrepresentation of information and material non-disclosure. 31. The deponent stated that the Respondent was never on the land for over 40 years as alleged and that she had taken advantage of his absence from the country and that he was bound to suffer irreparable harm in the event that the application is not allowed. 32. The court was urged to allow the application in the interest of justice. 33. **The responses by the Plaintiffs/Respondents** 34. In opposing the application, the Plaintiffs/Respondents filed a Replying Affidavit sworn by *HASSAN BAKARI GAWAYU* who averred as follows:- 35. He was the administrator to the estate of the deceased Respondent Mwanamkasi Hamisi Nimambeya. 36. The Respondent stated that the Applicant was being deceitful by stating that he was not aware of the suit for reason that he was served by way of substituted service and further by registered mail through the address indicated in the green card from the lands office records. 37. It was deposed that the Applicant entered appearance dated 14th March, 2022 and filed grounds of opposition dated 22nd April, 2022 and a preliminary objection which was canvassed by way of written submissions. 38. The pleadings were dispensed by written submissions and the preliminary objection was dismissed. 39. The Applicant then abandoned defending the suit and judgement in the matter was delivered on 20th March, 2024. 40. It was stated that the Applicant’s actions of denouncing their previous Counsel on record and choosing a different law firm after rectification of the title was a calculated move to mislead the court that the said party was not aware of the suit. 41. The Judgement was entered regularly and procedurally and the court ought not to find otherwise. 42. It was stated that the injunctive orders sought could not be granted as the applicant had failed to prove a prima facie case and that the Respondent was bound to suffer prejudice given that the property was already registered under her. 43. At paragraph 25, the Applicant stated that in the unlikely event that the application was allowed, then the Applicant be ordered to pay the costs awarded to the Plaintiff on 19th October, 2022 for dismissing the grounds of opposition at a throw away price. 44. **Submissions** 45. On 27th November 2025, in the presence of Mr. Mungai Counsel for the Respondent and Mr Mocha Counsel for the Applicant, directions were issued by this court to have the application dated 16th July 2024 canvassed by way of written submissions. 46. Unfortunately, at the time of writing this ruling, only the Plaintiffs/Respondents had complied with the said directions. The court will nevertheless proceed and render its verdict. 47. **The Written Submissions by the Plaintiffs/Respondents** 48. The Law firm of Messrs. Mungai Kamau & Company Advocates filed submissions on behalf of the Respondent herein. The Counsel identified two issues for determination; 49. Whether the Judgement delivered on 20th March, 2024 was regular and should be set aside. 50. Whether the Applicant had established and provided sufficient grounds for grant of injunction orders 51. On the first issue for determination. The Learned Counsel submitted that there had been evidence tendered before court indicating that the Applicant herein was served by way of substituted service through publishing an advertisement the local dailies – ***“The Daily Nation”*** newspaper. That there was further service by way of registered post. There was filed an Affidavit of service to this effect. The Counsel referred court to its record where the Applicant was given several chances to make an appearance and defend the suit but failed to show up. 52. The Learned Counsel submitted that the Applicant had not given any sufficient reason as to why he failed to defend the suit and that his conduct pointed towards his intention to frustrating the Plaintiff/Respondent from enjoying the fruits of her Judgement. The Honourable Court was urged to find that the Judgement entered was regular and could only be set aside upon sufficient grounds as was held in the case of:- “***Bouchard International Services Limited - Versus - Philip Nzioki M’mwereria [1987] eKLR”****.* 53. Further reference was made to the decisions in the case of:- “***Shah - Versus - Mbogo [1967] EA 166”***and in ***“Wachira Karani - Versus - Bildad Wachira [2016]eKLR”*** on whether the Applicant had demonstrated sufficient grounds to invite the court to exercise its discretion in setting aside the Judgement in his favour. It was stated that the Applicant had not annexed a draft Defence to confirm that he indeed had an arguable Defence or one that raised triable issues. That the absence of the defence was creating speculation to the court as to whether there existed any plausible reason for setting aside the Judgement. 54. The Learned Counsel stated that the application before court was an abuse of the court process and it ought not to be entertained by the court. 55. On whether the Applicant had provided sufficient grounds for grant of the injunction. The Learned Counsel submitted that the provision of Article 40 of the Constitution of Kenya, 2010 guaranteed the right to ownership of property by an individual in Kenya. That the provision of Section 26 of the Land Registration Act, No. 3 of 2010 further protected the registered owner of the suit property. Currently, as it was the Plaintiff/Respondent was the current registered owner of the property as the title held by the applicant was cancelled vide the Judgement of this court. 56. It was submitted that the Applicant had failed to meet the threshold set in the case of:- ***Giella - Versus - Cassman Brown [1973] EA 358”*** case on injunctions as proof of ownership of the suit property had not been provided for. That the applicant has never resided on the suit property and also that it was evident he was a foreign national whose physical possession of the property was not proved. The court was urged to dismiss the application. 57. **Analysis and Determination** 58. I have carefully read and considered the pleadings herein by the parties. The myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statutes. 59. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed three [3] issues for its determination. These are: - 60. ***Whether the Applicant made a case for setting aside of the impugned Judgement of 20th March 2024?*** 61. ***Whether the Applicant has met the conditions for granting an injunction*** 62. ***Who bears the costs of the application?*** ***ISSUE No. a). Whether the Applicant made a case for setting aside of the impugned Judgement of 20th March, 2024?*** 1. It is trite that a decision on whether to set aside or not set aside a Judgement or ruling is discretionary, and the said discretion is intended to be exercised so as to avoid injustice, and hardships, resulting from accident, inadvertence or excusable mistake or error, but is not designed to aid a party who had deliberately sought to obstruct justice, and has deliberately delayed the expeditious disposal of a matter. See the case of: *“****Shah – Versus - Mbogo & Another (Supra)”****,* where the Court held:- ***“The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice”***. 1. The first point of departure for this court will be to establish whether the Judgement against the Applicants herein was regularly or irregularly entered. There is a distinction between a default Judgment, that is regularly entered and the one that is irregularly entered as was set out by the Court of Appeal in the case of:- *“****James Kanyita Nderitu – Versus - Marios Philotas Ghikas (2016) eKLR”****,* where the Court held as follows: ***“In a regular default Judgement, the Defendant will have been duly served with summons to enter appearance or to file defence, resulting in default Judgment. Such a Defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default Judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default Judgment, and will take into account such factors as the reason for failure of the Defendant to file his Memorandum of Appearance or defence, as the case may be; the length of time that has elapsed since the default Judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default Judgment, among others. See Mbogo & Another – Versus - Shah (1968) EA 98, Patel – Versus - E.A. Cargo Handling Services Limited (1975) E.A. 75, Chemwolo & Another – Versus - Kubende (1986) KLR 492 and CMC Holdings – Versus - Nzioka [2004] I KLR 173.*** ***However, in an irregular Judgement, the considerations are different. The Court further stated; “In an irregular default Judgment, on the other hand; Judgment will have been entered against a Defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default Judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default Judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular Judgment. The reason why such Judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”*** 1. From the record before court, it is noted that the suit proceeded for hearing with service having been effected upon the Applicant through Substituted means under the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010. This has been confirmed from the advertisement placed in one of the local dailies – ***“The Daily Nation”*** of 11th January, 2022 which is of wide national circulation and readership confirming the substituted service and affidavits of service dated 30th November, 2021 and 17th January, 2022 that detail substituted service and the service by registered post. 2. From the record, the Applicant herein entered appearance and even filed grounds of opposition and a preliminary objection which was later dismissed by the court. The Judgement notice was also served. To now turn back and state that he was not aware of the suit and that he never gave any instructions to his then Counsel on record! I find these allegations to be wild and absurd. Clearly, this tantamount to an afterthought. 3. The Applicant sought to persuade this court that the Law firm of Messrs. Kairu & Kimani Advocates did not have any instructions to act on his behalf. It is however noted that the Applicant has not made any effort to make a report of professional misconduct or negligence to the Advocate Disciplinary Committee under the Law Society of Kenya the professional body for all practising advocates in Kenya with regards to the conduct of the said advocate. The court is not convinced that the Applicant was unaware of the suit from its inception. The Judgement was therefore regular. 4. Undoubtedly, under the provision of Article 25 ( c ) and 50 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, the right to fair hearing and to be heard is among the cardinal rules of natural justice and the same cannot be wished away by failure to effect proper service. Even in the event that service was effected, the court if not satisfied, it can out of its own motion set aside the proceedings **ex debito justitiae.** I am guided by the Court of Appeal case of “**Patrick Omondi Opiyo T/A Dallas Pub – Versus - Shaban Keah & Another [2018] eKLR”** where their Lordships stated as follows: *“****Service of summons accords the sued party the opportunity to be heard before any orders are issued against him/her. That is the essence of the rules of natural justice which all legal systems applaud. Where therefore judgment is entered against a party who has not been served and hence not been heard, such judgment will be set aside***ex debito justitiae.” 1. This was the similar holding in the case of:- “**James Kanyita Nderitu and Another – Versus - Marios Philotas Ghikas & Another [2016] eKLR”**where the Court stated as follows: ***“If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae. Such a Judgment is not set aside in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process.”*** 1. **However, in the instant suit, the court is adequately convinced that proper service was effected, and no satisfactory reason has been given as to why the Judgement ought to be set aside.** The dispute arises from an adverse possession claim and from the pleadings on record, the Judgement has already been perfected with registration of the Respondent as the proprietor of the suit property. The court does not wish to engage in any events that might hamper access to justice on the part of the Respondent who has the benefit of a Judgement in her favour. I am guided by the case of:- “***Hon. Justice G.V. Odunga****in****Republic – Versus s – Attorney General and Another Ex - Parte James Alfred Koroso”****,*where heexpressed himself thus on the issue of access to justice: ***“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.”*** 1. It is this court’s finding that no proper reason to disturb the current status of affairs has been availed to the court. As it is, it is my view that 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. By all means this application must fail outrightly. ***ISSUE No. b). Whether the Applicant has met the conditions for granting an injunction*** 1. The Applicant herein has also sought the grant of an order of temporary injunction, restraining the Respondent, her agents, servants, assigns from selling, transferring, charging, sub - dividing or otherwise dealing in or parting with ownership or possession of the property known as land parcel no KWALE/DIANI/390 pending the hearing and determination of the suit herein. 2. In response to the Applicant’s prayer on temporary injunction, the Respondent submitted that the same has since been overtaken by events for the reason that she has already assumed registration of the suit land having already been in possession of the same. 3. In determining this issue, this court bears in mind that the dispute between the parties has already been heard and determined by the trial court vide its Judgement of 20th March, 2024 and the temporary injunction sought is post Judgment, whereupon the rights and interests of the parties have been conclusively determined. 4. The law governing injunctions is found under the provision of Order 40 Rule (1) and (2) of the Civil Procedure Rules, 2010 as well as Section 13(7) (a) of the Environment and Land Court Act. The principles that govern the grant of temporary injunctions were set out in the celebrated case of: “***Giella – Versus - Cassman Brown & Co. Ltd [Supra)”***and has been restated by a long line of authorities. These principles are as follows: - 5. ***where he is required to demonstrate that he has a prima facie case with serious triable and arguable issues with a probability of success against the respondent. The test on prima facie case does not mean establishing a case beyond reasonable doubt;*** 6. ***He will suffer irreparable harm/injury which cannot be adequately compensated by damages;*** 7. ***Balance of convenience: In granting an injunction under this condition the court must be satisfied that the hardship or inconvenience which is likely to be caused to the applicant by declining the injunction will be greater than that which is likely to be caused to the Respondent.*** 8. In the case of:- ***“Kiyimba Kaggwa – Versus - Katende (Civil Suit No .2109 of 1984) [1985] UGIICCD 1 (23rd April, 1985)*** the following conditions were considered for an application for a temporary injunction:- 1. ***The Applicant must show a Primafacie case-with a probability of success.*** 2. ***Such injunction will not normally be granted unless the appellant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.*** 3. ***If the court is in doubt, it will decline an application on the balance of convenience.*** 9. However, before delving into the merits of the said elements and/or conditions, it is important to first determine whether the said orders as sought are tenable or whether the same have been overtaken by events. It is the respondent’s claim that she already assumed registration of the suit property and the orders of temporary injunction sought herein are therefore untenable. 10. The Applicant in his supporting affidavit acknowledged that the Respondent filed a suit before the court claiming for adverse possession of the suit property and which was granted. That the Applicant was served during commencement of the suit and was well aware of the proceedings before the court. The Applicant on the other hand informed the court that he was not made aware of the suit and did not participate in the same. The court has discussed the issue at length while determining the first issue above herein and will therefore not repeat the discussions and its findings. 11. By and large, the court is not convinced that the Applicant was not aware of the adverse possession claim and the suit in general. It is therefore not in dispute that 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. 12. I therefore find no reason to delve into the merits of the 3 elements to be proved to warrant the grant of orders of temporary injunction in the nature sought. Consequently, it is the finding of this court that the prayer having been overtaken by events. The orders sought of temporary injunction pending the hearing and determination of the suit are not tenable and the said prayer fails. ***ISSUE No. c). Who bears the costs of the application?*** 1. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceeding in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow an event unless the court for some good reason orders otherwise. By the event, it means the result or outcome of the legal action. 2. I wish to point out that whenever costs are sought it is not with the intention to punish the Applicant but rather for compensation for the trouble the Respondent has gone through defending the suit and prosecuting the case and restoring them in the position as they were prior to the institution of proceeding against them. 3. See the case of: *“****Rosemary Wairimu Munene Ex - Parte Applicant – Versus - Ihururu Party Farmers’ Cooperative Society J.R. No. 4/2014”***as cited in the case of:-*“****Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & Another [2016] eKLR”.*** 4. In the given circumstances, the court opines that it is proper for the Plaintiff/Respondent to have the costs of the application to be borne by the Defendant/Applicant herein. 5. **Conclusion and Disposition** 6. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court is satisfied that the Notice of Motion application dated 16th July, 2024 is without merit and ought to be dismissed. Thus, specifically, the Honourable Court proceeds to grant the following orders: 7. **THAT the application dated 16th July, 2024 be and is hereby dismissed for lacking merit.** 8. **THAT the Plaintiff/Respondent will have the costs of the application to be borne by the Defendant/Applicant herein.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…16TH ……. DAY OF ………..JUNE………….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mungai Kamau Advocate for the Plaintiffs/Respondents. 3. M/s. Sawe Advocate for the Defendant/Applicant.