[2020] KEELC 3249 (KLR)
The court found that the applicant failed to exercise due diligence, as the surveyor's report could have been filed before the initial ruling. The application for review was made approximately ten months after the ruling, and the delay was neither explained nor justified. The court held that the delay was...
Source-derived case information.
- Citation
- [2020] KEELC 3249 (KLR)
- Parties
- Plaintiff: Alfred Buore Ngonga; Defendant: Captain John Omondi Ochieng; Defendant: Alred Omondi Adipo; Defendant: Leah Akinyi Adipo; Defendant: Francis Adipo Ondeyo; Defendant: Kisumu County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 77 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Injunction
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Review of Court Orders, Injunctions, Survey Evidence, Delay in Filing, Due Diligence
- 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
Alfred Buore Ngonga
Plaintiff
Captain John Omondi Ochieng
Defendant
Alred Omondi Adipo
Defendant
Leah Akinyi Adipo
Defendant
Francis Adipo Ondeyo
Defendant
Kisumu County Government
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Injunction
Legal Issues
- 1 Whether the applicant has met the threshold for review of the court's ruling delivered on 18/10/2017.
- 2 Whether the applicant is entitled to an injunction based on the new surveyor's report.
- 3 Whether the delay in filing the application was reasonable and justified.
Ratio Decidendi
The court found that the applicant failed to exercise due diligence, as the surveyor's report could have been filed before the initial ruling. The application for review was made approximately ten months after the ruling, and the delay was neither explained nor justified. The court held that the delay was unreasonable and inordinate, and that no sufficient reason existed to warrant review of the previous ruling. Consequently, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application dated 24th June 2018 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC NO. 77 OF 2014
ALFRED BUORE NGONGA...................................PLAINTIFF
VERSUS
CAPTAIN JOHN OMONDI OCHIENG......1ST DEFENDANT
ALRED OMONDI ADIPO............................2ND DEFENDANT
LEAH AKINYI ADIPO..................................3RD DEFENDANT
FRANCIS ADIPO ONDEYO.........................4TH DEFENDANT
KISUMU COUNTY GOVERNMENT..........5TH DEFENDANT
RULING
The application before court, made by Alfred Buore Ngonga is dated 24th June 2018 and filed on 3/9/2018 seeking orders that the honourable court be pleased to recall, review and or set aside the ruling delivered on the 18th October 2017 dismissing the applicant’s Application. That the court be pleased to grant an injunction on the Application dated 24th November 2016. That the defendant provide costs of this application.
It seeks their orders on grounds that the surveyors report is now present in relation to this matter. The application is prompt and within reasonable time. It is in the interest of justice that this application be allowed.
The application is supported by an affidavit of the applicant wherein he states that the application for injunction was dismissed because of lack of the surveyors report. The plaintiff has now attached the surveyor’s report.
The application is opposed by the respondents. Valentine Oiro field a replying affidavit stating that they were not invited for the survey and therefore the survey report is null and void. She states that the survey report should have been availed before the ruling. She states that the survey report does not provide a prima facie case to justify the grant of orders sought in the application.
The gravamen of the 5th Defendant submissions is that the applicant failed to bring the application before this court promptly and there was unreasonable delay.
This court finds that the ruling was made on 18/10/2017 but the application was made on 3/9/2018. The delay of 10 months is not explained. The delay of 10 months is unreasonable and inordinate.
On the aspect of Discovery of a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge, could not be produced by him at this time when the decree was passed or the order made.
This court finds that the applicant did not exercise due diligence in conducting this case, had he done so he could have filed the report before the ruling of the Court.
I do not find any other sufficient reason for the court to review the ruling made on 18/10/2017. Application is dismissed with cost. Orders accordingly.
DATED AND DELIVERED THIS 28th DAY OF FEBRUARY, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
In the presence of:
M/S KEMBOI FOR MWAMU FOR APPLICANT
N/A FOR RESPONDENT