[2019] KEELC 1187 (KLR)
The court determined that the report by the Assistant County Commissioner was inadequate due to poor recording of proceedings and lack of recommendations. The court further found that, given the death of the 1st defendant and the transfer of the Assistant County Commissioner, it would be impractical to attempt to...
Source-derived case information.
- Citation
- [2019] KEELC 1187 (KLR)
- Parties
- Plaintiff: Hudson Obaga Okao; Plaintiff: Jason Mochama Okao; Defendant: Samson Obaga Okao; Defendant: Arwings Obaga; Defendant: Geoffrey Obaga Okao; Defendant: Derick Okao Obaga; Defendant: Roy Machuki Obaga; Defendant: Wallance Obaga Okao
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 59 of 2014
- Procedural Posture
- Land Case / Ruling on Referral to Mediation and Next Steps
- Outcome
- Application for referral to mediation declined; suit to proceed to hearing.
- Judges
- DO Ogal
- Legal Topics
- Mediation Referral, Implementation of Arbitration Report, Succession of Parties, Court Directives on Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hudson Obaga Okao
Plaintiff
Jason Mochama Okao
Plaintiff
Samson Obaga Okao
Defendant
Arwings Obaga
Defendant
Geoffrey Obaga Okao
Defendant
Derick Okao Obaga
Defendant
Roy Machuki Obaga
Defendant
Wallance Obaga Okao
Defendant
Procedural Posture
Land Case / Ruling on Referral to Mediation and Next Steps
Legal Issues
- 1 Whether the matter should be referred for mediation afresh given the inadequacy of the previous report.
- 2 Whether the Assistant County Commissioner should be given more time to perfect the report.
- 3 How the demise of the 1st defendant and transfer of the Assistant County Commissioner affect the proceedings.
Ratio Decidendi
The court determined that the report by the Assistant County Commissioner was inadequate due to poor recording of proceedings and lack of recommendations. The court further found that, given the death of the 1st defendant and the transfer of the Assistant County Commissioner, it would be impractical to attempt to perfect or implement the previous report or to continue with the process as previously directed. The court therefore declined to refer the matter for fresh mediation in the face of opposition from the defendants and instead directed that the suit be set down for hearing, while leaving open the possibility for the parties to pursue an out-of-court settlement if they so wished.
Court Disposition
Application for referral to mediation declined; suit to proceed to hearing.
Orders
- The suit shall be set down for hearing.
- Parties are not precluded from pursuing an out-of-court settlement.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
ENVIRONMNET AND LAND COURT AT KISII
ELC 59 OF 2014
HUDSON OBAGA OKAO................................................1ST PLAINTIFF
JASON MOCHAMA OKAO...........................................2ND PLAINTIFF
VERSUS
SAMSON OBAGA OKAO............................................1ST DEFENDANT
ARWINGS OBAGA......................................................2ND DEFENDANT
GEOFFREY OBAGA OKAO......................................3RD DEFENDANT
DERICK OKAO OBAGA.............................................4TH DEFENDANT
ROY MACHUKI OBAGA...........................................5TH DEFENDANT
WALLANCE OBAGA OKAO.....................................6TH DEFENDANT
RULING
INTODUCTION
1. This Ruling is in respect of the oral application made by Mr. Momanyi, learned Counsel for the plaintiffs. He proposes that this matter be referred for mediation as the arbitrator who handled the matter earlier filed a report that was not capable of being implemented since it does not have any specific recommendations.
2. Mr. Bosire learned Counsel for the Defendants is opposed to the position taken by Mr. Momanyi. He argues that when the matter was last in court on 19. 3.2018, the court directed that the Assistant County Commissioner ought to interrogate the report and come up with specific findings. He is of the view that Assistant County be given more time to come up with his findings based on what transpired during mediation rather than starting the process afresh.
3. I have read the report by the Assistant County Commissioner and even though I note that he listened to both sides the proceedings are poorly recorded and do not capture the real issues in controversy.
Coupled with that, there are no recommendations. Even if the report was to be taken back to him he could need to recall the parties to make their positions clear. It has been brought to the court’s attention that the 1st defendant who was the main party to the proceedings has died and that the Assistant County Commissioner who handled the matter has since been transferred and it would be difficult to find him to implement the court order of 19. 3.2018.
4. I agree with Mr. Momanyi that in view of the foregoing it would not make sense to have the report perfected so to speak. If both parties were so minded, the matter would have been referred to mediation.
However in view of the apparent opposition by Counsel for the Defendants and the demise of the 1st defendant, I direct that the suit be set down for hearing. This does not preclude the parties from pursuing an out of court settlement.
Dated, signed and delivered at Kisii this 17th day of October 2019.
JANE M. ONYANGO
JUDGE