[2019] KEELC 3457 (KLR)
The court found that there was no evidence to show that the dispute between the parties had been concluded. The closure of the miscellaneous application file on 17.7.2018 pertained only to the determination of the application dated 10.4.2017 and not to the substantive appeal, which remains pending. The court...
Source-derived case information.
- Citation
- [2019] KEELC 3457 (KLR)
- Parties
- Applicant: George Kiogora; Respondent: M’Mugambi M’Ringera & 5 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 10 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Orders
- Outcome
- application dismissed
- Legal Topics
- Land Disputes Tribunal Awards, Appeals Procedure, Closure of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kiogora
Applicant
M’Mugambi M’Ringera & 5 Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Orders
Legal Issues
- 1 Whether the dispute between the parties is concluded.
- 2 Whether the orders given on 23.5.2018 should be set aside.
Ratio Decidendi
The court found that there was no evidence to show that the dispute between the parties had been concluded. The closure of the miscellaneous application file on 17.7.2018 pertained only to the determination of the application dated 10.4.2017 and not to the substantive appeal, which remains pending. The court clarified that its earlier ruling directing the appeal to be heard before the court did not mean the appeal proceedings were to be conducted within the miscellaneous suit. As the appeal is yet to be heard and determined, the application to set aside the orders of 23.5.2018 was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 30.7.2018 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC ELC NO. 10 OF 2017
GEORGE KIOGORA …………………………………………… APPLICANT
VERSUS
M’MUGAMBI M’RINGERA & 5 OTHERS ……...………… RESPONDENT
RULING
1. In the application dated 30. 7.2018, the respondents in his miscellaneous application have sought orders for the setting aside of the orders given a 23. 5.2018. The grounds in support of the application are that the dispute is concluded.
2. One of the respondents, M’Mugambi M’Ringera has sworn a supporting affidavit filed on 30. 7.2018 where he states that he was the successful claimant in the LDT No. 52 of 2009 and the applicant tried to lodge an appeal with the provincial appeals committee which he declined to attend to and was never heard until the same became defunct. He further avers that this matter was marked as closed on 17. 7.2018 upon the request of the Applicant’s counsel. He also states that the applicant in this suit will not be prejudiced since he also entitled to one acre of land out of the subject matter as per the award of the District Land disputes Tribunal, of which the deponent herein is ready to give him. He therefore urges the court to allow his application in the interest of justice.
3. The application is opposed by George Kiogora, the applicant in the miscellaneous suit vide his replying affidavit filed on 29. 8.2010 where he avers that his appeal before the Provincial Land Appeals Committee Eastern Province was never heard because the Committee was disbanded. He also avers that at no time was the LDT NO.52 of 2009 concluded.
4. The only issue to determine is whether this dispute is concluded. I have perused the record herein and I find that this miscellaneous suit was filed in order to determine the fate of the matter which was before the Eastern Province Land Disputes Appeals Committee of which the court gave a determination vide the ruling of 23. 5.2018. The court directed that the appeal be heard before this court. That does not mean that the appeal proceedings were to be heard in this miscellaneous suit. As far as this matter is concerned, there is no evidence that the dispute is concluded. The appeal is yet to be heard. I believe that what is concluded is the determination of the application dated 10. 4. 2017, hence the closure of this file on 17. 7.2018.
5. The present application is dismissed with no orders as to costs, but the court will give directions on the hearing of the appeal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 8TH DAY OF MAY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Muchiri for applicant
C.P Mbaabu holding brief for Gikunda for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE