[2021] KEELC 4029 (KLR)
The court found that the date of 9.3.2021 was set for confirming the filing of submissions, not for hearing the preliminary objection. The record showed that post-judgment proceedings had commenced on 4.11.2019, and judgment was delivered on 25.10.2019. The court had issued directions on 16.1.2020 and 26.1.2021...
Source-derived case information.
- Citation
- [2021] KEELC 4029 (KLR)
- Parties
- Plaintiff: George Gatembo (Suing as Legal representative of the estate of Joseph Muguna – Deceased); Defendant: Elijah Mutegi M’Rwito; Defendant: M’Mugambi M’Marete; Defendant: Henry Kiambi; Defendant: Japhet Gakuru M’Aburia; Defendant: Shedrack Kiruki M’Laaria; Defendant: M’Kirera M’Angare; Defendant: Rufa M’Arigo; Defendant: Francis M’Ikiugu M’Muthuri; Defendant: Josphat Muriuki Kiura; Defendant: Fredrick Kiogora Gitonga; Defendant: Geoffrey Koome Mbaya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 70 of 2012
- Procedural Posture
- Land and Property / Post Judgment Directions on Preliminary Objection and Submissions
- Outcome
- Ruling date set for pending applications; preliminary objection not heard at this stage.
- Legal Topics
- Preliminary Objection, Representation of Parties, Filing of Submissions, Post Judgment Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gatembo (Suing as Legal representative of the estate of Joseph Muguna – Deceased)
Plaintiff
Elijah Mutegi M’Rwito
Defendant
M’Mugambi M’Marete
Defendant
Henry Kiambi
Defendant
Japhet Gakuru M’Aburia
Defendant
Shedrack Kiruki M’Laaria
Defendant
M’Kirera M’Angare
Defendant
Rufa M’Arigo
Defendant
Francis M’Ikiugu M’Muthuri
Defendant
Josphat Muriuki Kiura
Defendant
Fredrick Kiogora Gitonga
Defendant
Geoffrey Koome Mbaya
Defendant
Procedural Posture
Land and Property / Post Judgment Directions on Preliminary Objection and Submissions
Legal Issues
- 1 Whether the preliminary objection filed by the plaintiff should be heard before other pending issues.
- 2 Whether the documents filed by the plaintiff contravened previous court orders regarding submissions.
- 3 Whether Mr. C. Mbaabu is properly on record for the defendants.
Ratio Decidendi
The court found that the date of 9.3.2021 was set for confirming the filing of submissions, not for hearing the preliminary objection. The record showed that post-judgment proceedings had commenced on 4.11.2019, and judgment was delivered on 25.10.2019. The court had issued directions on 16.1.2020 and 26.1.2021 regarding the prosecution of pending applications. The court determined that the preliminary objection and related documents filed by the plaintiff were not in compliance with the directions given, and therefore, the court would proceed to give a ruling date in respect of the pending applications rather than address the preliminary objection at that stage.
Court Disposition
Ruling date set for pending applications; preliminary objection not heard at this stage.
Orders
- The court will proceed to give a ruling date in respect of the pending applications.
- Ruling to be delivered on 26.5.2021.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 70 OF 2012
GEORGE GATEMBU (Suing as Legal representative of the estate of
JOSEPH MUGUNA – Deceased)..................................PLAINTIFF/RESPONDENT
VERSUS
ELIJAH MUTEGI M’RWITO.......................................................1ST DEFENDANT
M’MUGAMBI M’MARETE.........................................................2ND DEFENDANT
HENRY KIAMBI............................................................................3RD DEFENDANT
JAPHET GAKURU M’ABURIA..................................................4TH DEFENDANT
SHEDRACK KIRUKI M’LAARIA.....................5TH DEFENDANT/APPLICANT
M’KIRERA M’ANGARE.............................................................6TH DEFENDANT
RUFA M’ARIGO...........................................................................7TH DEFENDANT
FRANCIS M’IKIUGU M’MUTHURI........................................8TH DEFENDANT
JOSPHAT MURIUKI KIURA....................................................9TH DEFENDANT
FREDRICK KIOGORA GITONGA........................................10TH DEFENDANT
GEOFFREY KOOME MBAYA................................................11TH DEFENDANT
RULING/DIRECTIONS
1. This matter was coming up for directions on 9. 3.2021 for submissions pursuant to a ruling delivered on 26. 1.2021. Come 9. 3.2021 and Mr. Mwanzia, counsel for the plaintiff informed the court that he has been dealing with a counsel who is not properly on record which necessitated the filing of the preliminary objection on 9. 3.2021. He therefore urges the court to deal with the preliminary objection before other issues.
2. This application was opposed by Mr. C. Mbaabu appearing for 4th, 6th, 9th, 10th and 11th defendants who contended that he was served with a set of grounds of opposition and on 9. 3.2021 he was served with the preliminary objection as well as a set of authorities. He urges the court to expunge the said documents as they contravene the orders of 26. 1.2021 which required the opposing side to file submissions. He contends that he is properly on record as the consent to come on record was filed way back on 4. 11. 2019.
3. I have keenly looked at the entire record where it is apparent that post judgment proceedings commenced on 4. 11. 2019. Judgment had been delivered earlier on 25. 10. 2019. The court has given various directions particularly on 16. 1.2020 and on 26. 1.2021 regarding the prosecution of the pending applications. The date of 9. 3.2021 was slated to confirm the filing of submissions and not the hearing of the preliminary objection.
4. In the circumstances, the court will proceed to give a ruling date in respect of the pending applications. Ruling on 26. 5.2021.
DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF MARCH, 2021
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 9. 3.2021. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE