[2018] KEELC 70 (KLR)
The court held that the preliminary objection raised by the interested party was unmeritorious because it was not based on a pure point of law, as required. The court found that the suit had not yet been formally withdrawn since the court had not marked it as such, and therefore, the matter was still active. Even if...
Source-derived case information.
- Citation
- [2018] KEELC 70 (KLR)
- Parties
- Plaintiff: Janita Makokha Buluma; Plaintiff: Charles Wesonga Richard; Plaintiff: Michael Ouma Buluma; Interested Party: Cosmas Buluma; Defendant: Julius Orina Manwari; Defendant: Esau Wamulanda; Defendant: Benard Okwara Balongo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Prior to Withdrawal of Suit
- Outcome
- preliminary objection dismissed with costs to the defendants
- Legal Topics
- Preliminary Objection, Withdrawal of Suit, Costs Award, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janita Makokha Buluma
Plaintiff
Charles Wesonga Richard
Plaintiff
Michael Ouma Buluma
Plaintiff
Cosmas Buluma
Interested Party
Julius Orina Manwari
Defendant
Esau Wamulanda
Defendant
Benard Okwara Balongo
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Prior to Withdrawal of Suit
Legal Issues
- 1 Whether the preliminary objection raised by the interested party is based on a pure point of law.
- 2 Whether the suit was properly withdrawn and if the court needed to mark it as withdrawn before it ceases to exist.
- 3 Whether directions on costs must be given by the court upon withdrawal of a suit.
Ratio Decidendi
The court held that the preliminary objection raised by the interested party was unmeritorious because it was not based on a pure point of law, as required. The court found that the suit had not yet been formally withdrawn since the court had not marked it as such, and therefore, the matter was still active. Even if the suit had been withdrawn, the issue of costs would still require the court's direction. The court further clarified that it was not necessary for the defendant's counsel to make a formal application to reinstate the suit, as the matter was properly before the court for directions. Consequently, the preliminary objection was dismissed with costs to the defendants.
Court Disposition
preliminary objection dismissed with costs to the defendants
Orders
- The preliminary objection by the interested party is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
ENVIRONMENTAL & LAND COURT
ELCNO. 143 OF 2017
JANITA MAKOKHA BULUMA............................... 1st PLAINTIFF
CHARLES WESONGA RICHARD..........................2ND DECEASED
MICHAEL OUMA BULUMA.................................. 3RD PLAINTIFF
COSMAS BULUMA................................4TH INTERESTED PARTY
VERSUS
JULIUS ORINA MANWARI................................. 1ST DEFENDANT
ESAU WAMULANDA.............................................2ND DEFENDANT
BENARD OKWARA BALONGO..........................3RD DEFENDANT
7/5/2018
Before: Hon. A. K. Kaniaru – J
CA: Nelson
Parties Present
Interpretation: English/Kiswahili
Manuari for 2nd and 3rd Defendants
Court: The matter is coming for preliminary Objection dated 22/4/2018 and filed on 23/4/2018. Hearing now.
E X T E M P O R E R U L I N G
I need not retreat to my chambers to make this ruling. It is a simple ruling. The Interested Party has raised a Preliminary Objection but is unable to point out the law he is relying on. Yet a preliminary objection is always based on law and raised pure point of law.
The Plaintiffs intimated intention to withdraw the suit vide a notice of withdrawal dated 22/1/2018. The counsel for the Defendant caused the matter to come up for mention in Court first to formalize the withdrawal and second to get directions form court on the issue of costs. The court has not yet marked the matter withdrawn yet and it is therefore a mis-apprehension on the part of the interested party to treat the matter as withdrawn. The fact of the matter is that the matter still exists until marked withdrawn.
But even assuming that the court had marked it withdrawn, the issue of costs would still arise and the matter would still have to come up in court so that directions on costs can be given. It is not true to say that counsel needed to make a formal application to reinstate the suit. Counsel was perfectly in order to cause the matter to be mentioned in court for directions.
In the premises, the interested party is wrong both in his appreciation of facts and his understanding of law. The Preliminary Objection herein is found unmeritorious and is dismissed with costs to the Defendant.
Right of Appeal in 30 days.
A. K. KANIARU - JUDGE
7/5/2018
In the Presence of:
1st Plaintiff: …………….……..……………..………..….…………
2nd Plaintiff: …………….……..……………..………..….…………
3rd Plaintiff: …………….……..……………..………..….…………
4th Interested Party: …………….……..…..………..….…………
1st Defendant: …………….………...………..………..……………
2nd Defendant: …………….………...………..………..……………
3rd Defendant: …………….………...………..………..……………
Counsel of Plaintiff: ………………..……..……..…………………
Counsel of Defendant: ………..………………..……..….………