Mulungu v Kariuki (Land Case Appeal E076 of 2024) [2026] KEELC 5187 (KLR)
The bottom line
#Kenya's Environment and Land Court has ruled that land ownership claims cannot be decided through ex parte miscellaneous applications—buyers must file a proper suit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a claim to land by an alleged purchaser can properly be instituted through an ex parte miscellaneous application
- 2.Whether the trial court erred in finding that the appellant transferred land parcel Idakho/Shiseso/2562 to the respondent
- 3.Whether the trial court's ruling and orders of 1st July 2024 should be set aside
Key legal issues
#Whether substantive proprietary claims to land may be brought by ex parte miscellaneous application
No - such claims must be instituted by plaint or other recognized originating process; ex parte miscellaneous applications are an unlawful shortcut and must be struck out.
Section 19 of the Civil Procedure Act requires every suit to be instituted as prescribed by the Rules. Order 3 Rule 2 requires a plaint with supporting evidence. No rule permits a purchaser to claim land via ex parte miscellaneous application. Such a process denies the respondent cross-examination and the Article 50 right to fair hearing, and amounts to obtaining land through the back door. The fate of such an application is striking out.
Whether the trial court's finding that the appellant transferred the suit parcel to the respondent was sustainable
The ruling was set aside; the finding was reached through a procedurally defective process and could not stand.
The trial court granted ex parte orders before service, then confirmed substantive transfer orders on a miscellaneous application without a properly tested evidential basis. There was no written contract between the appellant and the respondent as required by section 3(3) of the Law of Contract Act, and no properly instituted suit in which ownership could be adjudicated on the balance of probabilities.
Legal principles established
#- A claim for land by an alleged purchaser cannot properly be sought through an ex parte miscellaneous application; it must be instituted by a recognized pleading such as a plaint.
- Granting land through ex parte miscellaneous applications is unlawful and denies the respondent a fair hearing under Article 50.
Court orders
#- 1.The trial court ruling and orders made on 1st July 2024 are set aside
- 2.Substituted with an order striking out the ex parte notice of motion dated 25th January 2024 with costs to the respondent
- 3.The appellant shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kakamega
- Kakamega MCLE Misc. Application No. E007 of 2024
- Jurisdiction invoked
- First appeal from the Senior Principal Magistrate's Court (trial court ruling of 1st July 2024)
Relief refused
#Respondent's claim to be granted transfer of land parcel Idakho/Shiseso/2562
Claim was improperly instituted through an ex parte miscellaneous application rather than a recognized originating process, denying the respondent a fair hearing
Costs
Notice of motion struck out with costs to the respondent; appellant awarded costs of the appeal
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.
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.
This approach and practice is unlawful and amounts to obtaining land through the back door. The same must be discouraged and ought to stop.
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.
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.
Issues in the judgment
#Judgment date appears anomalous: dated 29th July 2026 while submissions are dated September 2025 and February 2025; appeal memorandum dated 29th August 2024.
The names of the parties are not fully stated in the judgment; parties referred to only as appellant/respondent.
Paragraph numbering restarts and is inconsistent throughout the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulungu v Kariuki (Land Case Appeal E076 of 2024) [2026] KEELC 5187 (KLR)", Case Analysis (2026). Appeal from Kakamega MCLE Misc. Application No. E007 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5187/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.