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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Case 202 of 2015

Bwanakali & 11 others v Abeid & another

Environment and Land Court
24 September 2026
1,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to reopen a 2019 land judgment, ruling the fresh attempt was an abuse of court process.

What this practically means

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Executive summary

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By a Notice of Motion dated 4th December 2025, Said Mwalimu Mwaboye (the Intended Defendant/Applicant) sought leave for M/s. Wambo Muyala & Company Advocates to come on record, setting aside of the ex-parte judgment delivered on 20th November 2019 by Justice C.K. Yano, his enjoinment as the proper Defendant in place of the deceased Mwalimu Said Boye, and leave to defend the suit on merits. He argued that the 1st Defendant died on 18th May 1998, before the proceedings were instituted, that the person served had no capacity, and that the judgment was obtained in error. The twelve Plaintiffs opposed via a Notice of Preliminary Objection dated 16th February 2026, treated as grounds of opposition, contending the application was res judicata and void, since the 1st Defendant's own application of 6th December 2021 to set aside the same judgment had been dismissed by Justice L.L. Naikuni on 17th October 2022 with costs, with no appeal. Justice J.O. Olola found the Applicant had not explained when he learned of the judgment, his relationship with the 1st Defendant or the suit properties, or why he was the person intended to be sued. Noting the 1st Defendant had himself filed the 2021 application, the Court held the fresh application, filed three years later without reference to the former proceedings, reeked of mischief and was an abuse of the Court process. The Motion was dismissed with costs to the Plaintiffs.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion dated 4th December 2025 seeking to set aside the ex-parte judgment of 20th November 2019 and to enjoin the Applicant as the proper Defendant is competent
  2. 2.Whether the application is res judicata and an abuse of the Court process given the dismissed application of 6th December 2021

Key legal issues

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01

Abuse of Court process / res judicata in successive applications to set aside the same judgment

Holding

The Motion dated 4th December 2025 was an abuse of process and was dismissed with costs.

Reasoning

The record showed the 1st Defendant had, on 6th December 2021, through F.M. Mwawasi & Co. Advocates, sought to set aside the same ex-parte judgment, and that application was dismissed by Justice L.L. Naikuni on 17th October 2022 with costs. The Applicant, a different party, filed the present application three years later without any reference to the former proceedings, which the Court found reeked of mischief. The Applicant also failed to explain when he learned of the judgment or why he, rather than the 1st Defendant, was the person intended to be sued.

p. 4
02

Whether the Applicant established that he was the proper party intended to be sued

Holding

The Applicant failed to establish any connection with the deceased 1st Defendant or the suit properties.

Reasoning

The Applicant asserted he was the person intended to be sued and was ready to defend the suit, but did not state his relationship with the 1st Defendant or the suit properties, did not explain when he learned of the 2019 judgment, and did not explain how the 1st Defendant could have filed the 2021 application if he had died in 1998. These omissions undermined the application's credibility and supported the finding of mischief.

p. 3

Legal principles established

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  • A party who seeks to set aside a judgment by a fresh application, after a similar application by the same defendant was dismissed, without reference to the former proceedings, abuses the Court process.

Court orders

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  1. 1.The Notice of Motion dated 4th December 2025 is dismissed with costs to the Plaintiffs

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 of the Environment and Land Court to set aside ex-parte judgments and regulate its own process

Relief refused

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Setting aside the ex-parte judgment delivered on 20th November 2019

The application was filed in abuse of the Court process, three years after a similar application by the 1st Defendant was dismissed, without reference to the former proceedings

p. 4

Enjoining Said Mwalimu Mwaboye as the proper Defendant in place of the deceased Mwalimu Said Mwaboye

The Applicant did not explain his relationship with the 1st Defendant or the suit properties, nor why he was the person intended to be sued

p. 4

Leave to file a response and defend the suit on merits

Follows from dismissal of the Motion; no basis found for the application

p. 4

Costs

Dismissed with costs to the Plaintiffs

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 follows that I did not find any basis for the Motion dated 4th December 2025. The same is hereby dismissed with costs to the Plaintiffs.
p. 4Final orders - dismissal of the application
this application being instituted by a different party some three (3) years after the previous attempt had been made and without making any reference to the former proceedings reeked of mischief and that the same has been filed in abuse of the Court process
p. 4Abuse of process
Neither does he explain why he thinks he is the person who was intended to be sued instead of the 1st Defendant.
p. 4Failure to establish capacity/interest

Issues in the judgment

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material

Applicant's claim that the 1st Defendant died in 1998 conflicts with the record showing the 1st Defendant swore an affidavit and filed an application in 2021.

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, "Bwanakali & 11 others v Abeid & another", Case Analysis (2026). Environment and Land Case 202 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5713/eng@2026-09-24

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