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ELCOtherEnviromental and Land Originating Summons E017 of 2025· [2015] KEELC 859 (KLR)

Mwafungo v EMM (In her Capacity as Trustee for E & K Minors) (Enviromental and Land Originating Summons E017 of 2025) (14 July 2015) (Directions) [2015] KEELC 859 (KLR)

Environment and Land Court
14 July 2025
EME. K. Makori
231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that ex parte orders in land disputes are never automatic — applicants must fully disclose their circumstances before the court decides.

What this practically means

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Executive summary

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This is a directions ruling of the Environment and Land Court at Malindi in an Environmental and Land Originating Summons (E017 of 2025) between Elyne Murira Mwafungo, as plaintiff, and EMM, sued in her capacity as trustee for E & K minors, as defendant. The matter came before E. K. Makori J on an application apparently filed ex parte. Rather than granting the orders sought outright, the court held that having considered the ex parte application it retained a duty to render a decision, but that the orders sought were not automatic, citing Gideon Sitelu Kanchellah v Julius Kekaerh Ole Sunkuli & 2 Others (2015) eKLR. The judge issued directions for the applicant, within seven days, to file a further affidavit disclosing whether she has any other land, shelter, or whether the subject property is a matrimonial home; to disclose any other disputable property or related proceedings, perhaps a Succession Cause; and to supply documentation concerning the sickness of one of the parties. Counsel for the applicant was also directed to file written submissions of not more than four pages on the issues raised. No final substantive relief was granted or refused, no costs order was made, and the court set the matter down for determination after compliance. The judgment is procedural in character; the substantive claim remains undetermined.

Key legal issues

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01

Whether ex parte applications for orders in land matters are granted automatically

Holding

No - the court retains a duty to scrutinise the application and may direct the applicant to supply further material before deciding

Reasoning

The court, having considered the application filed ex parte, held that a decision could not be issued without further material. It invoked the authority of Gideon Sitelu Kanchellah v Julius Kekaerh Ole Sunkuli & 2 Others for the proposition that such orders are not automatic, and instead issued directions requiring a further affidavit, documentation and written submissions within seven days before the substantive application is determined.

p. 1

Legal principles established

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  • Orders sought ex parte are not automatic; the court must consider the application on its merits before rendering a decision

Court orders

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  1. 1.Within seven days, the applicant to supply a further affidavit disclosing whether there is any other land, shelter or whether this is a matrimonial home
  2. 2.The applicant to disclose whether there is any other disputable property or incitements to other than this property, perhaps in a Succession Cause
  3. 3.The applicant to supply documentation on the sickness of one of the parties
  4. 4.Counsel for the Applicant to file written submissions on the relevant issues raised, of not more than four pages

Authorities

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Cases cited (1)

  • Gideon Sitelu Kanchellah vs Julius Kekaerh Ole Sunkuli & 2 Others
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the judgment

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, "Mwafungo v EMM (In her Capacity as Trustee for E & K Minors) (Enviromental and Land Originating Summons E017 of 2025)  (14 July 2015) (Directions) [2015] KEELC 859 (KLR)", Case Analysis (2025). Enviromental and Land Originating Summons E017 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/859/eng@2015-07-14

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