Nimambeya v Mazzonetto (Enviromental and Land Originating Summons E003 of 2021) [2026] KEELC 3875 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the judgment of 20th March 2024 was regularly entered and could be set aside
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.
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.
Whether the Applicant met the conditions for a temporary injunction
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.
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.
Who bears the costs of the application
The Defendant/Applicant to bear the costs, as costs follow the event under Section 27 of the Civil Procedure Act.
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.
Legal principles established
#- 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
#- 1.THAT the application dated 16th July, 2024 be and is hereby dismissed for lacking merit.
- 2.THAT the Plaintiff/Respondent will have the costs of the application to be borne by the Defendant/Applicant herein.
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.