[2023] KEELC 175 (KLR)
The court found that the respondent had been duly notified of the petition but chose not to respond. The petitioner, through counsel, applied to withdraw the petition and requested that there be no order as to costs, citing the close family relationship between the parties. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2023] KEELC 175 (KLR)
- Parties
- Applicant: George Otieno Aluoch; Respondent: Maurice Aluoch Okeya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition 5 of 2021
- Procedural Posture
- Environment and Land Petition / Ruling on Withdrawal of Petition
- Outcome
- Petition withdrawn with no orders as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Customary Land Rights, Gift Inter Vivos, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Otieno Aluoch
Applicant
Maurice Aluoch Okeya
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Withdrawal of Petition
Legal Issues
- 1 Whether the establishment of the petitioner’s home on the respondent’s property under Luo customary law constitutes a gift inter vivos protected by law.
- 2 Whether the petition should be withdrawn with no orders as to costs.
Ratio Decidendi
The court found that the respondent had been duly notified of the petition but chose not to respond. The petitioner, through counsel, applied to withdraw the petition and requested that there be no order as to costs, citing the close family relationship between the parties. The court exercised its discretion to allow the withdrawal of the petition with no orders as to costs, noting the absence of opposition and the nature of the dispute. The petition was accordingly marked as withdrawn.
Court Disposition
Petition withdrawn with no orders as to costs.
Orders
- The petition is marked as withdrawn.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Aluoch v Okeya (Environment & Land Petition 5 of 2021) [2023] KEELC 175 (KLR) (18 January 2023) (Ruling)
Neutral citation: [2023] KEELC 175 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Petition 5 of 2021
GMA Ongondo, J
January 18, 2023
In The Matter Of The Constitution Of Kenya, Article 3(1); 10(2b); 19(2&3c); 20 (1 &2); 22 (1); 23; 24 (3); 27(4&5); 28; 40; And 60(1a) & (4)
In The Matter Of The Constitution Of Kenya (protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013, Rule 4.
Between
George Otieno Aluoch
Petitioner
and
Maurice Aluoch Okeya
Respondent
Ruling
1. On January 20, 2019, the petitioner, George Atieno Aluoch through, M/s Nyauke and company Advocates, filed a petition dated August 20, 2018 seeking the orders infra;a.An order of declaration that the respondents actions of showing the petitioner where to establish his home and proceeding to establish a home for the petitioner on his property is in line with luo customary law and is protected under the Constitution and as such the portion where the petitioner’s home is situate amounts to gift inter vivos protected at law.b.An order directing each party to bear their own costs as this is a matter involving close family members.
2. The respondent, Maurice Aluoch Okeya through M/s Owade and company Advocates, filed a memorandum of appearance dated February 20, 2019 on even date.
3. There is no response to the petition.
4. The respondent’s counsel has severally been notified of this petition as discerned in notices of March 9, 2021 and September 14, 2021, among others, herein.
5. Clearly, the respondent opted not to respond to the petition; see also Ogada-versus Mollin (2009) KLR 620.
6. Besides, the petitioner’s counsel has prayed for withdrawal of the petition with no orders as to costs.
7. In the result, the petitioner’s application is merited and this petition is marked as withdrawn with no orders as to costs.
8. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 18TH DAY OF JANUARY 2023. G.M.A ONG’ONDOJUDGEPresentMs Odera learned counsel for Petitioner.Okello, Court Assistant