https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/643

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **ELC CASE. NO. E041 OF 2026** **JACKTON MOSES NAMWOSO………………….…….………………………………..APPLICANT** **VERSUS** **JOHN MUCHUMA NAMWOSO……………………………….RESPONDENT** **RULING** 1. The Applicant moved this court through a Notice of Motion dated 29th April 2026 under a Certificate of Urgency, expressed to be brought under sections 13 and 18 of the Environment and Land Court Act as well as Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders: 2. *Spent* 3. *That this Honourable Court be pleased to lift and/or set aside the stay of proceedings order issued on 09th October 2008 in Bungoma CM LDT No. 002 of 2008* 4. *That consequent upon the lifting of the stay, this Honourable Court do set aside the award of the District Land Disputes Tribunal in claim No. SHI/LDT/02/07 which purportedly hived off 3.5 acres from land parcel S.Malakisi/N.Kulisiru/237* 5. *That this Honourable Court to declare Jacton Moses Namwoso Mabonga as the sole rightful beneficiary of the estate of the late Jackson Namwoso Macheso and the rightful owner of the suit land* 6. *That the costs of this Application be provided for* 7. The instant Application was premised on the grounds set out on its face, which grounds were fortified by the Supporting Affidavit thereto sworn by the Applicant on 29th April 2026. 8. The Applicant averred that he was the son and the sole beneficiary of the estate of the late Jackson Namwoso Macheso, who at the time of his death was the registered owner of S. Malakisi/N.Kulisiru/237 (“the suit property”). 9. He further averred that sometime in 2007, the Respondent filed a claim before the Sirisia District Land Disputes Tribunal, Claim No. SHI/LDT/02/07, where he was reportedly irregularly awarded 3.5 acres of land to be hived from the suit property. He appealed against that award vide the Provincial Land Disputes Tribunal Appeal No. 50 of 2008, which led to the stay of proceedings in Bungoma CMC LDT Case No. 002 of 2008 on 09th October 2008. 10. He added that his appeal before the Provincial Land Disputes Tribunal was never heard and determined following the repeal of the Land Disputes Tribunal Act, which rendered the tribunals defunct. 11. The Applicant also deposed that the stay order in Bungoma CMC LDT Case No. 002 of 2008 has prevented the finalization of the deceased’s estate, causing great prejudice to him, thus necessitating the filing of the instant Application. 12. The Respondent did not respond to the instant Application despite having duly been served. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the instant Application in its entirety. It is well settled in this jurisdiction that even when an Application is unopposed, the court has a duty to determine whether it is merited. This legal position can be gleaned from **Gideon Sitelu Konchellah -vs- Julius Lekakeny Ole Sunkuli & 2 Others (2018) eKLR,** where the Supreme Court observed as follows: *“…. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behoves the Court to be satisfied that prima facie, with no objections, the application is meritorious and the prayers may be granted.”* 1. Guided by the authority above, this Court is of the considered view that the only issue for determination is whether the instant Application and the orders sought are merited. ***Whether the instant Application and the Orders sought are merited*** 1. The evidence placed before this court by the Applicant shows that the issues raised in the instant Application are issues pending before the court vide Bungoma CMC LDT Case No. 002 of 2008 where the proceedings therein were stayed on 09th October 2008 pending the hearing and determination of the Provincial Land Disputes Tribunal Appeal No. 50 of 2008. 2. Despite this court granting the Applicant time to avail the proceedings on the outcome of Provincial Land Disputes Tribunal Appeal No. 50 of 2008, the Applicant did not avail the said proceedings. 3. Those proceedings would have enabled this court to satisfy itself on whether the issues raised by the Applicant herein were ever heard and determined or not. 4. It is not lost to this court that the Provincial Land Disputes Tribunals became defunct upon the repeal of the Land Disputes Tribunal Act after the enactment of the Environment and Land Court Act in 2011. Consequently, the Hon. Chief Justice issued practice directions vide Gazette Notice No. 163268 of 2012 directing that all land disputes pending before the defunct land disputes tribunals be transferred to the nearest Magistrate’s Courts for hearing and determination. 5. The foregoing shows that even if the Applicant’s appeal before the Provincial Land Disputes Tribunal had not been heard and determined at the time the said tribunal became defunct, that land dispute must have been transferred to a Magistrate’s Court for hearing and determination. 6. In the absence of evidence on the status of the Applicant’s appeal before the then Provincial Land Disputes Tribunal, and in the absence of evidence on whether the said appeal was transferred to a Magistrate’s Court for hearing and determination, this court runs the risk of determining a dispute that was concluded a long time ago. 7. In any event, given that the issues herein are issues which are pending determination in Bungoma CMC LDT Case No. 002 of 2008 and the fact that the impugned stay order was issued in the said file, the Applicant ought to have filed the instant Application in Bungoma CMC LDT Case No. 002 of 2008. 8. It is also imperative to note that the Applicant herein is also seeking substantive orders including a declaration that he is the rightful owner of the suit property. This begs the question whether a party can enforce a right through a miscellaneous application. This question was answered by Wabwoto J in **Mruttu v Director Land Adjudication & Settlement & 5 others (Miscellaneous Application E009 of 2025) [2026] KEELC 773 (KLR) (Civ)** as follows: *“28.In the instant case, the seek orders which have far reaching implication that may be decreed to be full in their nature even though she has argued that the same are not substantive.* *29.In the case of Rockland Kenya Ltd v Commissioner General of KRA & Another (2020) eKLR, the court held that substantive orders cannot be issued in miscellaneous applications. The court had in turn cited with approval the decision in Witmore Investment Ltd v County Government of Kirinyaga & 3 Others (2016) eKLR where it was stated that;“……where a party such as an applicant herein seeks an order that in effect appears to resolve with a finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy, raised in the application, it should have moved this court properly in the manner provided by the law.”* *30.The court in the case of Nairobi West Hospital Ltd v Joseph Karina & Another (2018) eKLR, made a similar finding that a substantive order cannot be issued through a miscellaneous application.* *31.In view of the foregoing, it is the finding of the court that the nature of the orders sought by the Applicant cannot be issued in a Miscellaneous Application as sought. The said orders are not merely procedural but substantive.”* 1. The authority above is clear that substantive orders seeking a right cannot be sought through a miscellaneous application. 2. It is against this backdrop that this Court finds and holds that the instant Application and the orders sought are not merited. **DETERMINATION** 1. The upshot of the above is that the Applicant’s Application dated 29th April 2026 is struck out with no order as to costs. **Read, signed, and delivered in open Court at Bungoma this 18th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Applicant C/A: Mr. Rioba