[2017] KEELC 3393 (KLR)
The court found that although the 2nd respondent was not the subject of any specific orders in the petition, he had nonetheless participated in the proceedings by filing a response. The petitioner's counsel made an oral application to withdraw the petition, which the court allowed. In exercising its discretion, the...
Source-derived case information.
- Citation
- [2017] KEELC 3393 (KLR)
- Parties
- Applicant: Augustine Guya Orire; Respondent: Chairman of Nyando Land Control Board; Respondent: John Odoyo Atieno; Respondent: District Land Registrar, Nyando
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 1 of 2017
- Procedural Posture
- Constitutional Petition / Withdrawal of Petition Before Hearing
- Outcome
- Petition withdrawn with costs to the 2nd respondent.
- Legal Topics
- Land Control Board Powers, Withdrawal of Petition, Constitutional Right to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Guya Orire
Applicant
Chairman of Nyando Land Control Board
Respondent
John Odoyo Atieno
Respondent
District Land Registrar, Nyando
Respondent
Procedural Posture
Constitutional Petition / Withdrawal of Petition Before Hearing
Legal Issues
- 1 Whether the petitioner is entitled to withdraw the constitutional petition as requested.
- 2 Whether the 2nd respondent is entitled to costs upon withdrawal of the petition.
Ratio Decidendi
The court found that although the 2nd respondent was not the subject of any specific orders in the petition, he had nonetheless participated in the proceedings by filing a response. The petitioner's counsel made an oral application to withdraw the petition, which the court allowed. In exercising its discretion, the court held that the 2nd respondent was entitled to costs due to his involvement in the matter. The petition and the notice of motion were accordingly marked as withdrawn with costs to the 2nd respondent.
Court Disposition
Petition withdrawn with costs to the 2nd respondent.
Orders
- The petition dated 16th July 2014 and the notice of motion of even date are marked as withdrawn.
- Costs awarded to the 2nd respondent.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
CONSTITUTIONAL PETITION CASE NO.1 OF 2017
[FORMERLY HIGH COURT CONSTITUTION PETITION CASE NO. 12 OF 2014]
IN THE MATTER OF ARTICLES 23, 27 (1) AND 40(1) 2 (A) 3 OF THE
CONSTITUTION OF KENYA
AND
IN THE MATTER OF CONTRAVENTION OF RIGHTS AND FREEDOM UNDER
ARTICLES 40 (A) 2(A) 3 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 13 (3) OF THE ENVIRONMENT AND
LAND COURT ACT 2011
BETWEEN
AUGUSTINE GUYA ORIRE...................................................................PETITIONER
VERSUS
THE CHAIRMAN OF NYANDO LAND CONTROL BOARD.....1ST RESPONDENT
JOHN ODOYO ATIENO………………………………..…...…2ND RESPONDENT
DISTRICT LAND REGISTRAR, NYANDO…………….….......3RD RESPONDENT
RULING
Having heard counsel for the Petitioner, and the 2nd Respondent and having perused the petition dated 16th July 2014, replying affidavit of the 2nd Respondent sworn 22nd September 2014, and that of S. Lukoko Were, the 3rd Respondent, sworn on 10th February 2015, and noting that the counsel for the petitioner has made an oral application to be be allowed to withdraw the petition, the court orders as follows;
a) That though the 2nd Respondent was enjoined as a party in the petition, there was no specific orders sought that were directed to him. That the 2nd Respondent nevertheless filed his response to the application and he is therefore entitled to costs.
b) That the Petitioner’s counsel application to withdraw the petition is therefore allowed and the Petition dated 16th July 2014, and the notice of motion of even date are herein marked withdrawn with costs to 2nd Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 22ND DAY OF MARCH 2017
In presence of;
Petitioner Absent
Respondents 2nd present
Counsel Mr Anyumba for Olel for 2nd Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
22/3/2017
22/3/2017
S.M. Kibunja judge
Court clerk Oyugi
2nd Respondent present
Mr Anyumba for Mr. Olel for 2nd Respondent
Court: Ruling dated and delivered in open court in presence of the 2nd Respondent and Mr. Anyumba for Olel for 2nd Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
22/3/2017