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ELCDismissedMiscellaneous Application (Notice of Motion dated 11/04/2025), Bungoma ELC· [2025] KEELC 5221 (KLR)

Masoni (Suing as the Legal Representative of the Estate of Ben Masoni) v Shimenga t/a Webuye Printers & Farmers Hotes (Environment and Land Miscellaneous Application E014 of 2025) [2025] KEELC 5221 (KLR)

Environment and Land Court
3 July 2025
1,975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Bungoma dismissed a landlady's bid to make a tenant deposit rent in court, because the plot in dispute was not part of any ongoing case.

What this practically means

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Executive summary

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The Applicant, widow and administratrix of the Estate of Ben Masoni (deceased), registered owner of Webuye Municipality Plot 75, moved the court by Notice of Motion dated 11/04/2025 seeking an order that the Respondent, a tenant on Plot 75, deposit rent in court pending the hearing and determination of Bungoma ELC Case No. 160 of 2017, contending the Respondent was erroneously omitted from earlier rent-deposit orders of 19/07/2018 and December 2023. The Respondent, while confirming he was a tenant, opposed the application, asserting neither he nor his landlady was a party to ELC 160 of 2017 and that no law provides a separate suit to review orders in a different suit. The court scrutinised the record and found no ruling demonstrating that ownership of Plot 75 was in controversy in ELC 160 of 2017; the order of 19/07/2018 by Hon. Justice B. Olao related only to Plot 74, and the alleged owner of Plot 75 was not a party to that suit. Applying Uhuru Highway Development Ltd v Central Bank of Kenya, the court held preservation orders cannot issue in a vacuum, and that substantive orders affecting a third party's interest in land cannot be obtained through a miscellaneous application unsupported by a valid suit with properly joined parties, as this would offend natural justice and due process. The Notice of Motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether interim preservation orders (deposit of rent) could issue in respect of Plot No. 75

Holding

The application was dismissed; Plot No. 75 is not in controversy in ELC 160 of 2017 and no orders in that suit relate to it

Reasoning

The court suo moto perused the proceedings in ELC No. 160 of 2018 and the order of 19/07/2018 by Hon. Justice B. Olao, finding that the rent-deposit order related only to Plot No. 74, the subject of that dispute. No ruling demonstrated Plot No. 75 was in controversy, and the alleged owner was not a party, so no prima facie case anchored in existing proceedings existed.

p. 3
02

Whether substantive orders can bind third parties through a miscellaneous application without a substantive suit

Holding

No; such orders would violate natural justice and due process

Reasoning

The court held that granting the orders would effectively bind individuals who had not been heard in any case. Substantive orders affecting a third party's interest in land require a valid suit in which ownership is contested and parties are properly joined; a miscellaneous application cannot substitute for such a suit.

p. 4

Legal principles established

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  • Courts will not grant injunctive or preservation orders in a vacuum or where the legal rights in question are not properly anchored in existing proceedings

Court orders

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  1. 1.The Applicant's Notice of Motion application dated 11th April, 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)
  • Environment and Land Court ActSection 13(7)

Cases cited (2)

  • Rose Njeri Ndegwa v Samuel Sobi J. Misingu
    [2019] eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others
    [1995] eKLR
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act; Article 162(2) of the Constitution of Kenya 2010 (invoked by the Applicant)

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, "Masoni (Suing as the Legal Representative of the Estate of Ben Masoni) v Shimenga t/a Webuye Printers & Farmers Hotes (Environment and Land Miscellaneous Application E014 of 2025) [2025] KEELC 5221 (KLR)", Case Analysis (2025). Miscellaneous Application (Notice of Motion dated 11/04/2025), Bungoma ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5221/eng@2025-07-03

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