[2021] KEELC 1018 (KLR)
The court, upon perusal of the plaintiff's Notice of Motion, found sufficient grounds to grant the request to dispense with service in the first instance and to temporarily stay the hearing of the counter-claim. Consequently, the orders issued on 22nd September 2021 listing the case for further hearing were vacated...
Source-derived case information.
- Citation
- [2021] KEELC 1018 (KLR)
- Parties
- Plaintiff: Alfonse Wanjala Masinde; Defendant: Altalf Abdulali Shariff Jivraj; Defendant: Nazmudin Abdulali Shariff Jivraj; Defendant: The County Government of Bungoma; Defendant: The Chief Land Registrar; Defendant: The Hon Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 23 of 2019
- Procedural Posture
- Land and Property Suit / Interlocutory Application; Order on Notice of Motion for Stay and Setting Aside Ex Parte Judgment
- Outcome
- interlocutory orders granted in part; prayers (a) and (b) allowed; hearing of counter-claim stayed pending determination of application; other prayers deferred
- Legal Topics
- Ex Parte Judgment, Counter Claims, Interlocutory Orders, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alfonse Wanjala Masinde
Plaintiff
Altalf Abdulali Shariff Jivraj
Defendant
Nazmudin Abdulali Shariff Jivraj
Defendant
The County Government of Bungoma
Defendant
The Chief Land Registrar
Defendant
The Hon Attorney General
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Application; Order on Notice of Motion for Stay and Setting Aside Ex Parte Judgment
Legal Issues
- 1 Whether the court should dispense with service of the application in the first instance.
- 2 Whether the hearing of the counter-claim should be temporarily stayed pending determination of the application.
- 3 Whether the ex parte judgment in respect of the counter-claim and partial proceedings of 22nd September 2021 should be set aside and the suit remitted for pre-trial.
Ratio Decidendi
The court, upon perusal of the plaintiff's Notice of Motion, found sufficient grounds to grant the request to dispense with service in the first instance and to temporarily stay the hearing of the counter-claim. Consequently, the orders issued on 22nd September 2021 listing the case for further hearing were vacated to allow for the determination of the application. The court directed that the application be served on the defendants, who would then have an opportunity to respond, and set timelines for the exchange of submissions. The court emphasized compliance with these timelines, failing which the stay would lapse and the defendants could proceed to set a new hearing date. The remaining...
Court Disposition
interlocutory orders granted in part; prayers (a) and (b) allowed; hearing of counter-claim stayed pending determination of application; other prayers deferred
Orders
- Prayer (a) granted: Service of the application dispensed with in the first instance.
- Prayer (b) granted: Hearing of the counter-claim temporarily stayed pending determination of the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA
ELC CASE NO. 23 OF 2019
ALFONSE WANJALA MASINDE..............................................PLAINTIFF
VERSUS
ALTALF ABDULALI SHARIFF JIVRAJ........................1ST DEFENDANT
NAZMUDIN ABDULALI SHARIFF JIVRAJ................2ND DEFENDANT
THE COUNTY GOVERNMENT OF BUNGOMA........3RD DEFENDANT
THE CHIEF LAND REGISTRAR..................................4TH DEFENDANT
THE HON ATTORNEY GENERAL..............................5TH DEFENDANT
02/11/2021
Coram: Hon. B. N. Olao JUDGE
(In Chambers)
O R D E R
This suit is listed for further hearing on 9th November 2021.
However, I now have placed before me the plaintiff’s Notice of Motion dated 25th October 2021 and filed under Certificate of Urgency seeking the following orders: -
(a) That it pleases the Honourable Court to dispense with service of this application in the first instance.
(b) That it pleases the Court to temporarily stay the hearing of the Counter – Claim pending hearing and determination of this application.
(c) That it pleases the Honourable Court to set aside the exparte Judgment in respect of the Counter – Claim, vacate partial proceedings of 22nd September 2021 and remit the suit for pre – trial or make such orders as the Court deems fit to grant.
(d) That it pleases the Honourable Court to allow the plaintiff time and leave to file a Power of Attorney.
(e) Costs be in the cause.
Upon perusal of the said Notice of Motion, I grant prayer (a) and (b) with the result that the orders issued on 22nd September 2021 listing this case for further hearing on 9th November 2021 is hereby vacated to give way to the determination of this application.
The application shall be canvassed by way of written submission.
The plaintiff to serve the application and written submissions upon the defendants within seven (7) days from to–day.
The defendants shall within fourteen (14) days of service upon them of the application and submissions file and serve their responses and submissions upon the plaintiff.
The matter shall be mentioned virtually before the Deputy Registrar on 29th November 2021 for purposes of taking a date for the ruling which shall be by way of electronic mail.
The plaintiff’s Counsel must abide by the time lines set out herein with regard to service upon the defendants and in default, order (b) shall lapse and the defendants shall be at liberty to take a new date for further hearing of this case.
Costs in the cause.
Boaz N. Olao.
J U D G E
2nd November 2021.