https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5187

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC LAND APPEAL NO. E076 OF 2024** **ALFONCE KULABI MULUNGU............................ APPELLANT** **VERSUS** **SARAH WAIRIMU KARIUKI........................... RESPONDENT** ***(Being an appeal against the ruling of Hon. Z.J Nyakundi, (SPM) delivered on 1st July 2024 in Kakamega MCLE Misc. Application No. E007 of 2024)*** **JUDGMENT** **Introduction** 1. This appeal arises from the ruling of Hon. Z.J. Nyakundi, Senior Principal Magistrate, delivered on 1st July 2024 in Kakamega MCLE Misc. Application No. E007 of 2024. In the impugned ruling, the trial court held that the appellant had transferred land parcel No. Idakho/Shiseso/2562, a subdivision of land parcel No. Idakho/Shiseso/386, to the respondent’s predecessor in title, and that it was immaterial whether the appellant knew the subsequent purchaser to whom the portion had been sold. The court further found that by an agreement dated 26th April 2015, one Simon had sold to the respondent, the portion he had purchased from the appellant. Consequently, the trial court ordered the appellant to sign the necessary transfer documents in favor of the respondent, failing which the Executive Officer or Court Administrator was directed to execute the said documents on his behalf. **Background** 1. The applicant (respondent herein) filed an ex-parte notice of motion dated 25th January 2024, under Certificate of Urgency, in the trial court seeking the following orders: 2. **Spent** 3. **That the 1st respondent be compelled to attend Land Control Board within the next 30 days and thereafter transfer Land Registration No. IDAKHO/SHISESO/2562 to the applicant.** 4. **The Land Registrar and District Land Surveyor to be ordered to visit land parcel IDAKHO/SHISESO/2562 and reinstate its boundaries.** 5. **The OCS Malaika police station to provide security during the exercise** 6. **Costs of the application be provided.** 7. The application was premised on the grounds on its face and the supporting affidavit sworn by the applicant, in which she stated that she was the purchaser of land parcel No. Idakho/Shiseso/2562, which was still registered in the name of the seller, the 1st respondent. That although the 1st respondent had signed the transfer forms, he failed to attend the second Land Control Board meeting when called upon to do so, thereby frustrating completion of the transfer process. She further stated that she was in need of possession of the purchased parcel for purposes of development, but that the 1st respondent had interfered with the boundaries of the suit property and blocked her from utilizing the same. 8. On the same day, the trial court certified the matter urgent and, *ex*-*parte*, ordered the 1st respondent to attend the Land Control Board within thirty days and thereafter transfer land parcel No. Idakho/Shiseso/2562 to the applicant. The court further directed that the application be served upon the respondents for *inter*-*partes* hearing on 11th March 2024. 9. The 1st respondent thereafter filed a notice of motion dated 16th February 2024, seeking orders for the court to set aside, vary or review its orders issued on 25th January 2024 and that the 1st respondent be accorded an opportunity to be heard. The application was premised on the grounds that there was an error on the face of the record. That there was no contract between the applicant and the 1st respondent and that the 1st respondent had been condemned unheard in the land matter, against the tenets of equity. That the applicant ought to have filed a substantive suit, where evidence would be taken from the parties. 10. On 11th March, 2024, the trial magistrate proceeded to set aside its orders earlier issued on 25th January 2024. The matter was then set down for inter partes hearing and was canvassed by way of written submissions. 11. The appellant then filed replying affidavit dated 16th May 2024. She stated that the applicant was a stranger to her and has no locus to sue him. That the applicant had failed to disclose material facts. That the applicant had not stated who sold her land. He denied selling land to the applicant. He maintained that he does not owe the applicant anything. That due to variance of his name on his national identity card and title deed, he sought to have the name corrected and was introduced to a land surveyor to assist him in that process. That the applicant colluded with the surveyor and his name was wrongly indicated. That he was asked to sign forms allegedly for name correction and not for a land control board consent. He denied appearing before an advocate to sign transfer forms. That he sold land to someone else not the applicant. That the orders sought cannot be granted via a miscellaneous application and that the applicant ought to have filed suit. He denied interfering with any boundary. 12. Upon considering the application and the submissions filed by the parties, the trial court held that the 1st respondent had transferred land parcel No. Idakho/Shiseso/2562, being a subdivision of land parcel No. Idakho/Shiseso/386, to the applicant. The court further found that the 1st respondent had admitted that he sold portions of the land to Morris Isutsa, who later sold to Simon, and to one Christopher Khatayo Mangusi. It held that it was immaterial whether the 1st respondent knew the persons to whom the said purchasers subsequently sold their portions, and that his obligation was to execute the necessary transfer documents. That by an agreement dated 26th April 2015, Simon sold to the applicant the portion he had purchased from the 1st respondent. Consequently, the court ordered the 1st respondent to sign the transfer documents in favor of the applicant, failing which the Executive Officer or Court Administrator would execute the same on his behalf. 13. Aggrieved by the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 29th August 2024, citing the following grounds of appeal: 14. **The Honorable trial Magistrate erred in law and fact in finding that the appellant (being the 1st respondent in the Lower Court) transferred Land Parcel No. IDAKHO/SHISESO/2562 which is a subdivision of LAND PARCEL NO. 386 to the applicant (now respondent) when there was no evidence to back such finding.** 15. **The Honorable trial magistrate erred in law and fact in finding in favor of the respondent when there was no privy of contract between the respondent and the appellant, and no evidence of purchase of the respondent from the appellant.** 16. **The Honorable trial magistrate erred in law and fact in finding favor of the respondent in absence of any documentary evidence in support of the findings.** 17. **The Honorable trial magistrate erred in law and fact in deviating from the law regarding ownership of property, enforceability of contracts and applicability of Section 3(3) of the Contract Act as amended through Legal Notice no. 21 of 1990.** 18. **The Honorable trial magistrate erred in law and fact in finding for the respondent in when the respondent had failed to prove her case on the balance of probabilities as against the appellant and the orders having been made on a miscellaneous application, there was no case to find on a balance of probability.** 19. **The Honorable trial magistrate erred in ignoring the submissions by the appellant and or refusing to make any references thereto in the impugned ruling.** 20. **The Honorable trial magistrate failed to give reasons for his ruling.** 21. **The Honorable trial magistrate failed to apply any law in writing the ruling hence occasioned miscarriage of justice.** 22. The appellant prayed that the appeal be allowed, the lower court's ruling be set aside and substituted with a proper finding of this Honorable court. 23. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 29th September 2025 and submissions by the respondent dated 10th February 2025; both of which this court has duly considered. **Appellant’s submissions.** 1. The appellant submitted that the trial court erred in finding that he had transferred land parcel No. Idakho/Shiseso/2562 to the respondent, yet there was no evidence of any such transfer and denied signing or thumb-printing any transfer documents in favor of the respondent. 2. The appellant further submitted that there was no privity of contract between him and the respondent. He contended that the respondent’s own material showed that she allegedly purchased the land from Simon Musebe Aloyo, who claimed to have bought it from Morris Isutsa, who had in turn allegedly purchased it from Christopher Kulabi Malungu. It was therefore his position that any claim by the respondent, if at all, lay against her alleged vendor and not against him. 3. The appellant also faulted the trial court for relying on an alleged agreement dated 26th April 2015 between Simon Musebe Aloyo and the respondent, yet no such agreement had been produced before the court. He further argued that, since Morris Isutsa was deceased, no claim founded on the alleged transaction could properly be sustained without legal representation of his estate. He submitted that the trial court misapplied **section 3(3) of the Law of Contract Act**, as there was no written contract between him and the respondent for disposition of an interest in land. 4. The appellant argued that the trial court granted final substantive orders through a miscellaneous application, in the absence of a properly instituted suit. The appellant relied **on section 19 of the Civil Procedure Ac**t and **Order 3 Rule 1 of the Civil Procedure Rules**, and submitted that substantive rights over land could only be enforced through a plaint, petition, originating summons or other recognized originating process. He also relied on **Norah Ndunge Henry & another v Abednego Mutisya & another**, where the court held that a notice of motion is not a recognized originating process and can only be filed within a properly instituted suit. 5. Lastly, the appellant submitted that the trial court failed to give reasons for its ruling, failed to consider his submissions, and issued orders that went beyond the prayers sought, including empowering the Court Administrator to sign transfer documents on his behalf. He maintained that the ruling was unsupported by the evidence and the law, and prayed for this court to allow the appeal with costs. **Respondent’s submissions.** 6. The respondent submitted that the trial court properly allowed the matter to proceed by way of miscellaneous application, and that undue regard should not be placed on procedural technicalities at the expense of substantive justice. Reliance was placed on **Article 159(2)(d) of the Constitution** and **R (on the Application of UNISON) v Lord Chancellor [2017] UKSC 51**, for the proposition that access to justice should not be impeded by procedural barriers. 7. On whether the appellant had sold the suit property, the respondent submitted that the appellant had admitted in his affidavit that he had sold part of land parcel No. Idakho/Shiseso/386, which was later subdivided into three portions, one of them being land parcel No. Idakho/Shiseso/2562. She further submitted that the appellant had signed the application for consent and transfer documents in her favor, surrendered his KRA PIN certificate, and thereafter refused to attend the Land Control Board. 8. The respondent submitted that the appellant was estopped from denying the transaction, having by his conduct participated in the process leading to the intended transfer. She relied on **section 120 of the Evidence Act**, **Pickard v Sears 112 ER 179**, and **Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR**, in support of the principle that a party who has, by words or conduct, caused another to act on a representation cannot later resile from that position. 9. It was also submitted that the case fell within the equitable exceptions to the doctrine of privity of contract, particularly constructive trust and proprietary estoppel. Citing **Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri** and **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR**, she argued that where a purchaser has paid the purchase price and acted upon the transaction, equity may intervene to prevent unjust enrichment and protect the purchaser’s interest. The respondent submitted that the appeal was an afterthought, unmeritorious, and ought to be dismissed with costs. **Analysis and determination** 1. The court has carefully considered the appeal, submissions and the entire trial court record. In the case before me, the respondent approached the trial court through a Miscellaneous application for purposes of enforcing her alleged proprietary rights in parcel No. Idakho/Shiseso/2562 on the premises that she was a purchaser. Before the application was ordered to be served, the trial court on 25th January 2024, granted the orders sought ex parte. 2. I must, at this stage raise concerns about the increasing prevalent practice of some litigants and counsel using ex parte miscellaneous applications as a shortcut to obtain orders granting them land. This approach and practice is unlawful and amounts to obtaining land through the back door. The same must be discouraged and ought to stop. Section 19 of the Civil Procedure Act provides that every suit SHALL be instituted in such a manner as may be prescribed in the Rules. The manner of institution of a suit guide on how the suit shall be heard. A claim by an alleged purchaser of land can only be instituted by pleading recognized in law. The proper way is by institution of a plaint attached with evidence and exhibits supporting the allegations as provided for in Order 3 Rule 2 of the Civil Procedure Rules. 3. There is no provision in the Civil Procedure Rules prescribing that a purchaser of land shall institute their claim by ex parte miscellaneous application. I am clear in my mind that a claim for land by an alleged purchaser cannot properly be sought through an ex parte miscellaneous application like what happened in this case. 4. A miscellaneous application, denies the respondent a chance to have any evidence by the applicant properly tested in the conventional manner through cross examination. This practice of obtaining ex parte substantive and summary orders in claims for land using miscellaneous applications is bad practice. It is also unfortunate that some lower courts are awarding land to parties through ex parte Miscellaneous applications, an approach that is without doubt unlawful and must stop. 5. Article 50 of the Constitution provides for the right of every person to fair hearing which include the right to an opportunity to defend a claim against them. When a claim for land is presented through an miscellaneous application, the respondent is denied the right to a fair trial. It therefore follows that the fate of such application is an order of striking out. 6. In the premises, this appeal is merited. The trial court ruling and orders made on 1st July 2024 are hereby set aside and substituted with an order striking out the ex parte notice of motion dated 25th January 2024 with costs to the respondent. 7. The appellant shall have the costs of this appeal. 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/ VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Ms Munihu for the appellant Mr. Mbaka for the respondent Court Assistant: Delphine