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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the court has jurisdiction to stay or set aside a judgment and order issued in a separate, earlier case file
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 3rd April 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs
Dismissed with costs (costs to the Plaintiffs/Respondents)
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.
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.
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
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.
the court finds that this application lacks merit and is therefore dismissed with costs
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.