[2024] KEELC 5211 (KLR)
The court found that the application for admission of submissions out of time was unopposed, as the appellant/respondent failed to file a reply despite being duly served. The court emphasized the importance of fair hearing and access to justice, noting that the applicant had complied with service requirements....
Source-derived case information.
- Citation
- [2024] KEELC 5211 (KLR)
- Parties
- Appellant: Walter Odoyo Kandiawo; Respondent: Victor Otieno Chianda; Respondent: Joash Odhiambo Jonyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 7 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Admission of Submissions Out of Time
- Outcome
- Application partially allowed.
- Judges
- GMA Ongondo
- Legal Topics
- Admission of Late Submissions, Functus Officio, Jurisdiction of Court, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Odoyo Kandiawo
Appellant
Victor Otieno Chianda
Respondent
Joash Odhiambo Jonyo
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Admission of Submissions Out of Time
Legal Issues
- 1 Whether the 2nd respondent's submissions should be admitted out of time.
- 2 Whether the court has jurisdiction to entertain the application in light of functus officio.
- 3 Whether the right to a fair hearing was observed.
Ratio Decidendi
The court found that the application for admission of submissions out of time was unopposed, as the appellant/respondent failed to file a reply despite being duly served. The court emphasized the importance of fair hearing and access to justice, noting that the applicant had complied with service requirements. Applying the principles from Halsbury’s of England and relevant Kenyan case law, the court exercised its discretion to admit the 2nd respondent's submissions out of time. The issue of costs was deferred to abide the outcome of the substantive Motion and the entire matter.
Court Disposition
Application partially allowed.
Orders
- The 2nd respondent's submissions are admitted out of time.
- Costs of the application to abide the outcome of the Motion and the entire matter.
Full Case Text
Judgment text and source record
27 paragraphs
Kandiawo v Chianda & another (Environment and Land Appeal 7 of 2021) [2024] KEELC 5211 (KLR) (11 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5211 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 7 of 2021
GMA Ongondo, J
July 11, 2024
Between
Walter Odoyo Kandiawo
Appellant
and
Victor Otieno Chianda
1st Respondent
Joash Odhiambo Jonyo
2nd Respondent
Ruling
1. In a Notice of motion dated 7th June 2024, the 2nd respondent/applicant through the firm of Omuthe and Company Advocates, has sought admission of his submissions out of time and that costs of the application be provided for.
2. The submissions are in regard to the applicant’s application by way of Notice of Motion dated 14th November 2023 (The Motion) seeking, inter alia, to set aside this court’s judgment delivered on 21st September 2023.
3. In response to the Motion, are grounds of opposition dated 20th January 2024 by the Appellant/ Respondent to the effect that this court is functus officio and devoid of jurisdiction over the Motion.
4. Notably, the application was duly served on the appellant/respondent via email oooadvocates@gmail.com as disclosed in an affidavit of service sworn on 10th July 2024 herein.
5. A fair opportunity to be heard is a fundamental principle justice as stated in Halsbury’s of England 5th Edition 2010 Volume 61 paragraph 639; see also James Kanyiita Nderitu-vs-Marios Philotas Ghikas and others (2016) eKLR.
6. The respondents having been given an opportunity to respond to the application in the spirit of access and fair hearing, failed to reply to it; see Ogada-vs-Mollin (2009) KLR 620 and Articles 48 and 50 (1) of the Constitution of Kenya 2010.
7. It is therefore, my considered view that the application is unopposed, steadfast and meritorious.
8. Thus, the application partially succeeds regarding the admission of the applicant/2nd respondent’s submissions out of time as stated in paragraph 1 hereinabove.
9. Costs of the application to abide the outcome of the Motion and the entire matter.
10. It is so ordered
DATED AND DELIVERED AT HOMA BAY THIS 11TH DAY OF JULY 2024,G.M. A ONG’ONDOJUDGEPresent;1. Mr. Omuthe learned counsel for the applicant/2nd respondent.2. T. Luanga, court assistant