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ELCDismissedNot stated on the face of the judgment

Kibui & another v Kinunu & Njuguna (Being the Personal Representative of the Estate of Beth Watiri Kanja - Deceased) & 3 others (Environment and Land Case E069 of 2024) [2025] KEELC 7867 (KLR)

Environment and Land Court
12 November 2025
1,878 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Thika Environment and Land Court dismissed landowners' bid to overturn a judgment because they filed in the wrong case, costing them money and time.

What this practically means

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Executive summary

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The 1st and 2nd Defendants/Applicants moved the Environment and Land Court at Thika by Notice of Motion dated 3rd April 2025 seeking stay of a judgment of 17th January 2024, stay of execution, setting aside of the order adopting a Thika Land Disputes Tribunal award (Claim No. TKA/LDT/55/2008/6 over parcel Ruiru/Ruiru East Block 2/799) as a judgment of the court, and leave to file their pleadings. They contended they were never served with the adoption application, that service was falsely represented to the court, and that the Plaintiffs/Respondents had delayed over fifteen years since the Tribunal's 5th May 2009 award before moving to adopt it, while they remained in occupation and development of the land. They relied on Article 50(1) of the Constitution, Order 10 Rule 11 of the Civil Procedure Rules, Section 47 of the Evidence Act and Section 3A of the Civil Procedure Act, and on authorities including Shah v Mbogo and Ivita v Kyumbu. The Respondents filed no response or submissions. The court identified a single issue: its jurisdiction to stay or set aside the impugned order. It found that the present suit was instituted on 9th May 2024, months after the judgment of 17th January 2024, so the impugned order belonged to a separate case file that had been neither transferred nor consolidated with this suit. Absent consolidation, the court could not sit on appeal or review a decision of a concurrent court; the proper course was to move the court that issued the order by review, setting aside, or appeal. Although the fair-hearing concerns were weighty, the application was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to stay or set aside the judgment and order dated 17th January 2024, adopting the Lands Tribunal award.

Key legal issues

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01

Whether the court has jurisdiction to stay or set aside a judgment and order issued in a separate, earlier case file

Holding

It does not. The impugned order of 17th January 2024 emanated from a distinct matter not transferred or consolidated with this suit, so the application was dismissed.

Reasoning

The court noted the present suit was filed on 9th May 2024, after the impugned judgment of 17th January 2024, meaning the adoption order belonged to a different case file. Though inherent power under Section 3A of the Civil Procedure Act allows a court to set aside orders obtained by fraud or want of service, that power must be exercised by the court that made the order, absent formal transfer or consolidation. Otherwise the court would purport to review a decision of a concurrent court. The Applicants' fair-hearing concerns were weighty but improperly brought.

p. 4

Legal principles established

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  • A court's inherent jurisdiction to set aside orders obtained by fraud, misrepresentation or want of service can only be invoked before the same court or within the same case in which the impugned order was made, unless the matter has been formally transferred or consolidated.
  • In the absence of transfer or consolidation, a court may not sit on appeal or review a decision of another court of concurrent jurisdiction.

Court orders

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  1. 1.The Notice of Motion dated 3rd April 2025 is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act (invoked by the Applicants and considered by the court)

Relief refused

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Stay of judgment and execution of the order of 17th January 2024, setting aside of the adoption order, and leave to file pleadings

The court lacked jurisdiction because the impugned order was made in a separate, earlier case file that has not been transferred or consolidated with this suit; the proper course is to move the court that issued the order.

p. 5

Costs

Dismissed with costs (costs to the Plaintiffs/Respondents)

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.

It is trite law that a court may, in exercise of its inherent jurisdiction under Section 3A of the Civil Procedure Act, set aside its own orders where it is demonstrated that the orders were obtained through fraud, misrepresentation, or want of service.
p. 4Inherent jurisdiction to set aside orders procured by fraud or want of service
such jurisdiction can only be properly invoked before the same court or within the same case in which the impugned order was made, unless the matter has been formally transferred or consolidated with a later suit
p. 4Limits on that jurisdiction
In the absence of such consolidation, this court may not purport to sit on appeal or review the decision of another court of concurrent jurisdiction.
p. 4No review of a concurrent court's decision
the court finds that this application lacks merit and is therefore dismissed with costs
p. 5Final orders / disposition

Issues in the judgment

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minor

The judgment does not state the suit number of the present proceedings or identify the Plaintiffs/Respondents by name, making the case title and number incomplete.

minor

The impugned judgment of 17th January 2024 predates the filing of this suit on 9th May 2024, yet the applicants are named as Defendants in this suit; the relationship between the two files is not fully explained on the record.

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, "Kibui & another v Kinunu & Njuguna (Being the Personal Representative of the Estate of Beth Watiri Kanja - Deceased) & 3 others (Environment and Land Case E069 of 2024) [2025] KEELC 7867 (KLR)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7867/eng@2025-11-12

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