[2023] KEELC 899 (KLR)
The court adopted the parties' consent to abandon the application to strike out the appeal and allowed the application to register a restriction on Land Parcel no Kanyada/Kothidha/561 pending the hearing and determination of the appeal. The court exercised its discretion to preserve the subject matter of the appeal...
Source-derived case information.
- Citation
- [2023] KEELC 899 (KLR)
- Parties
- Appellant: Elisha Opiyo Achieng; Respondent: Nelson Atieno Owuor; Interested Party: Jeremiah Obar Ndong
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E014 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Applications
- Outcome
- Applications determined by consent; restriction to be registered on the suit land pending appeal; costs to abide the outcome of the appeal.
- Judges
- GMA Ongondo
- Legal Topics
- Registration of Restrictions, Appeal Procedure, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elisha Opiyo Achieng
Appellant
Nelson Atieno Owuor
Respondent
Jeremiah Obar Ndong
Interested Party
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the appellant's memorandum of appeal should be struck out and the appeal dismissed.
- 2 Whether a restriction should be registered on Land Parcel no Kanyada/Kothidha/561 pending the determination of the appeal.
Ratio Decidendi
The court adopted the parties' consent to abandon the application to strike out the appeal and allowed the application to register a restriction on Land Parcel no Kanyada/Kothidha/561 pending the hearing and determination of the appeal. The court exercised its discretion to preserve the subject matter of the appeal and ensure that the rights of the parties are protected until the appeal is resolved. Costs of both applications were ordered to abide the outcome of the appeal.
Court Disposition
Applications determined by consent; restriction to be registered on the suit land pending appeal; costs to abide the outcome of the appeal.
Orders
- The 1st application to strike out the memorandum of appeal is abandoned.
- The 2nd application is allowed; the county land registrar Homa-Bay is directed to register a restriction on Land Parcel no Kanyada/Kothidha/561 pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
Achieng v Owuor; Ndong (Interested Party) (Environment and Land Appeal E014 of 2021) [2023] KEELC 899 (KLR) (14 February 2023) (Ruling)
Neutral citation: [2023] KEELC 899 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E014 of 2021
GMA Ongondo, J
February 14, 2023
Between
Elisha Opiyo Achieng
Appellant
and
Nelson Atieno Owuor
Respondent
and
Jeremiah Obar Ndong
Interested Party
(Being an Appeal from the judgment of the Senior Principal Magistrate’s Court at Homa-Bay. Hon. T.Obutu, Senior Principal Magistrate, dated 16th day of June 2021)
Ruling
1. This ruling is in respect of two applications namely:a.A Notice of Motion dated April 12, 2023 and filed in court on April 28, 2023 by the firm of G S Okoth and Company Advocates for the interested party/respondent. (the 1st application herein)b.A notice of motion dated January 24, 2023 and filed in court on January 26, 2023 by the firm of G S Okoth and Company Advocates for the interested party/respondent (the 2nd application herein)
2. In the 1st application, the applicant has sought the orders infra:a.The honourable court be pleased to strike out the appellant’s memorandum of appeal dated November 29, 2021 and thereafter dismiss the entire appeal.b.The costs of this application be awarded to the interested party.
3. By the 2nd application, the orders sought are thus:a.The honourable court be pleased to make an order directing the county land registrar Homa-Bay to register a restriction on the title of Land Parcel no Kanyada/Kothidha/561 pending the hearing and determination of the appeal.b.The costs of this application do abide the result of the appeal.
4. Mr Ken Omollo learned counsel for the appellant/respondent and Ms P Odhiambo learned counsel instructed by M/s G S Okoth and Company Advocates for the respondent/interested party/appelicant have agreed to have the 1st and 2nd applications determined as follows:a.The 1st application be and is hereby abandoned.b.The 2nd application is hereby allowed in terms of prayer no 1 sought therein and as set out in paragraph 3(b) hereinabove.c.Costs of the 1st and 2nd applications to abide the outcome of this appeal.
5. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 14TH DAY OF FEBRUARY, 2023. G M A ONG’ONDOJUDGEPresent:a. Mr Ken Omollo learned counsel for the appellant/respondentb. Mr Odhiambo instructed by G S Okoth learned Counsel for the 1st interested party/applicant.c. Okello and Fiona, Court assistants.