[2017] KEELC 1385 (KLR)
The court found that, in the absence of written submissions from the parties as directed, there was no basis upon which to consider the preliminary objection. As such, the preliminary objection was struck out. The court did not make a determination on the merits of the sub judice argument, but rather disposed of the...
Source-derived case information.
- Citation
- [2017] KEELC 1385 (KLR)
- Parties
- Applicant: Japheth Kahindi Mungela; Applicant: Charo Kahindi Mungela; Applicant: Ali Kahindi Mungela; Applicant: Albert Mungela; Applicant: Kambi Masha; Applicant: Kadzitu Kombe; Applicant: Katsele Ali; Respondent: Kitsao Ngonyo Hinzano; Respondent: Harrison Kombe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 246 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out
- Judges
- OA Angote, JO Olola
- Legal Topics
- Adverse Possession, Limitation of Actions, Sub Judice Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Kahindi Mungela
Applicant
Charo Kahindi Mungela
Applicant
Ali Kahindi Mungela
Applicant
Albert Mungela
Applicant
Kambi Masha
Applicant
Kadzitu Kombe
Applicant
Katsele Ali
Applicant
Kitsao Ngonyo Hinzano
Respondent
Harrison Kombe
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is sub judice in view of Malindi CMCC No. 160 of 2010.
- 2 Whether the preliminary objection should be entertained in the absence of written submissions.
Ratio Decidendi
The court found that, in the absence of written submissions from the parties as directed, there was no basis upon which to consider the preliminary objection. As such, the preliminary objection was struck out. The court did not make a determination on the merits of the sub judice argument, but rather disposed of the objection procedurally due to non-compliance with directions regarding submissions.
Court Disposition
preliminary objection struck out
Orders
- The preliminary objection dated 14th April, 2016 is struck out.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ELC CASE NO. 246 OF 2014 (O.S)
IN THE MATTER OF PORTION NO. 127 MALINDI
AND
IN THE MATTER OF SECTION 38 OF LIMITATION OF ACTIONS ACT CAP 22, LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION FOR DECLARATION THAT THE PLAINTIFFS HAVE OBTAINED TITLE OVER PORTION NO. 138/1/2/3 MALINDI BY ADVERSE POSSESSION
BETWEEN
JAPHETH KAHINDI MUNGELA .....................1ST PLAINTIFF/APPLICANT
CHARO KAHINDI MUNGELA.........................2ND PLAINTIFF/APPLICANT
ALI KAHINDI MUNGELA ...............................3RD PLAINTIFF/APPLICANT
ALBERT MUNGELA .......................................4TH PLAINTIFF/APPLICANT
KAMBI MASHA .............................................5TH PLAINTIFF/APPLICANT
KADZITU KOMBE .........................................6TH PLAINTIFF/APPLICANT
KATSELE ALI ................................................7TH PLAINTIFF/APPLICANT
VERUS
KITSAO NGONYO HINZANO .............1ST DEFENDANT/RESPONDENT
HARRISON KOMBE ..........................2ND DEFENDANT/RESPONDENT
RULING
1. This Ruling is in respect to the 1st Defendant’s Preliminary Objection dated 14th April, 2016 in which the 1st Defendant has averred that this suit is sub judice in view of Malindi CMCC No. 160 of 2010.
2. Although the parties were to argue the Preliminary Objection by way of written submissions, I have not seen the said submissions on record.
3. In the absence of those submissions, the Preliminary Objection is struck out with no order as to costs.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O. A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J.O. OLOLA
JUDGE