[2004] KEHC 617 (KLR)
The court held that since the Assistant Chief, Elishaphan Odero Omiti, was not a party to the suit and no application had been made to enjoin him as a party, there was no legal basis to condemn him to pay costs. Furthermore, the applicant failed to present any new facts or evidence that were not available at the...
Source-derived case information.
- Citation
- [2004] KEHC 617 (KLR)
- Parties
- Applicant: Jonyo Ogalo Omiti; Applicant: Onyango Omiti; Applicant: Okoth Omiti; Applicant: Obonyo Omiti; Applicant: Ayako Omiti; Respondent: Flreia Owanda w/o Omiti (Deceased); Respondent: Jotham Ouma Omiti; Respondent: Eliakim Ogalo Omiti Rep; Respondent: Ajwang w/o Omiti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 541 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Review of Previous Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Costs Award, Joinder of Parties, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonyo Ogalo Omiti
Applicant
Onyango Omiti
Applicant
Okoth Omiti
Applicant
Obonyo Omiti
Applicant
Ayako Omiti
Applicant
Flreia Owanda w/o Omiti (Deceased)
Respondent
Jotham Ouma Omiti
Respondent
Eliakim Ogalo Omiti Rep
Respondent
Ajwang w/o Omiti
Respondent
Procedural Posture
Civil Case / Ruling on Application for Review of Previous Ruling
Legal Issues
- 1 Whether the court should review and reverse its ruling dismissing the application to condemn a non-party to pay costs.
- 2 Whether there are new facts or evidence to warrant review of the previous ruling.
- 3 Whether a non-party can be condemned to pay costs in a suit.
Ratio Decidendi
The court held that since the Assistant Chief, Elishaphan Odero Omiti, was not a party to the suit and no application had been made to enjoin him as a party, there was no legal basis to condemn him to pay costs. Furthermore, the applicant failed to present any new facts or evidence that were not available at the time of the original ruling. The court found no reason to interfere with its previous decision and dismissed the application for review with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 26th January 2005 is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII CIVIL CASE NO.541 OF 1993
1. JONYO OGALO OMITI )
2. ONYANGO OMITI )
3. OKOTH OMITI ) ………………………… APPELLANTS
4. OBONYO OMITI )
5. AYAKO OMITI )
VERSUS
1. FLREIA OWANDE w/o OMITI (DECEASED )
2. JOTHAM OUMA OMITI )
3. ELIAKIM OGALO OMITI REP ) ……………….. RESPONDENT
4. AJWANG w/o OMITI )
RULING
The applicants application dated 26th January 2005 seeks court to review and reverse its ruling of 28th September 2004.
The applicant was the second defendant in this suit filed in October 1993 by five plaintiffs namely: JONYO OGOLA OMITI; ONYANGO OMITI; OKOTH OMITI; OBONYO OMITI and AYOKO OITI seeking “the rectifications of the land parcels number Kamagambo/Kabuoro/881 and 797. ”
By an application filed on 2nd February 2000 the defendants asked the court to dismiss the suit for Want of Prosecution. The court on 27th January 2001 found there was a delay of 7 years in prosecuting case and dismissed the suit. Court was silent on issue of costs and as such the defendant/applicant filed another application on 12th February 2001 asking court to condemn the plaintiffs to pay costs.This application was allowed.
On 30th January 2004 the applicant filed an application seeking one ELISAPHAN ODERO OMITI an Ass. Chief of Koderobara sub location to pay costs of the dismissed suit. On 28th September 2004 the court dismissed that application. It is that ruling the applicant now want reviewed and reversed.
In dismissing the application dated 30th January 2004 the court clearly gave its reason. Assistant Chief Elishaphan ODERO OMITI was not one of the plaintiffs who filed this suit. At no time did any body make an application to have him enjoined as a party. Thus at the time of filing the application of 30th September 2004, the said Ass. Chief was not a party to this suit. That is why the court dismissed the applicants application as there are no provisions which can enable a court to condemn a person who is not a party to the suit to pay costs. The applicant can only pursue those who sued him to pay for costs or damages. The court has not now been told of any new developments which would make it review that ruling. There are no new facts or evidence which was not there when the court heard the application and dismissed it. The said assistant chief is still not a party to the suit. There is therefore no reason for this court to interfere with its ruling on 28th September 2004
In the circumstances the application is dismissed with costs.
Dated 17th May 2004
KABURU BAUNI
JUDGE
cc. Mobisa
Applicant present
N/A for Respondent.