[2021] KEELC 4150 (KLR)
The court found that the cross-petition filed by the Interested Party was accompanied by a supporting affidavit sworn by Peter Oltetia Semeiyo on 25th July, 2019. Therefore, the cross-petition complied with the requirements of rule 10(2) of the Mutunga Rules. The applicant's assertion that the cross-petition was not...
Source-derived case information.
- Citation
- [2021] KEELC 4150 (KLR)
- Parties
- Applicant: Lodi Meseyieki Xavier; Respondent: County Government of Narok; Respondent: Cabinet Secretary Ministry of Land Housing and Urban Development; Respondent: Land Adjudication Officer Transmara; Respondent: Land Registrar Transmara; Respondent: Honourable Attorney General; Respondent: Board of Management Enooretet Primary School
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 265 of 2017
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection/application
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Cross Petition Requirements, Supporting Affidavit, Mutunga Rules Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lodi Meseyieki Xavier
Applicant
County Government of Narok
Respondent
Cabinet Secretary Ministry of Land Housing and Urban Development
Respondent
Land Adjudication Officer Transmara
Respondent
Land Registrar Transmara
Respondent
Honourable Attorney General
Respondent
Board of Management Enooretet Primary School
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection/application
Legal Issues
- 1 Whether the cross-petition filed by the Interested Party is incompetent for lack of a supporting affidavit.
- 2 Whether the cross-petition offends rule 10(2) of the Mutunga Rules.
Ratio Decidendi
The court found that the cross-petition filed by the Interested Party was accompanied by a supporting affidavit sworn by Peter Oltetia Semeiyo on 25th July, 2019. Therefore, the cross-petition complied with the requirements of rule 10(2) of the Mutunga Rules. The applicant's assertion that the cross-petition was not supported by an affidavit was factually incorrect. As a result, the Notice of Motion dated 23rd September, 2019, seeking to strike out the cross-petition, was dismissed. The court directed that the matter proceed to hearing, as there was no procedural defect in the cross-petition to warrant its striking out.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 23rd September, 2019 is dismissed.
- The matter to proceed for hearing.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
JUDICIAL REVIEW NO.265 OF 2017
LODI MESEYIEKI XAVIER..........................................................PETITIONER
VERSUS
COUNTY GOVERNMENT OF NAROK............................1ST RESPONDENT
CABINET SECRETARY MINISTRY OF LAND
HOUSING AND URBAN DEVELOPMENT......................2ND RESPONDENT
LAND ADJUICATION OFFICER TRANSMARA............3RD RESPONDENT
LAND REGISTRAR TRANSMARA...................................4TH RESPONDENT
HONOURABLE ATTORNEY GENERAL.........................5TH RESPONDENT
AND
BOARD OF MANAGEMENT ENOORETET PRIMARY
SCHOOL............................................................................INTERESTED PARTY
RULING
The Petitioner filed a Notice of Motion dated 23rd September, 2019, supported by the Affidavit of the Petitioner sworn on even date.
The Petitioner prays that
1. That this Honourable court be pleased to declare that the Interested Party has no cross-petition within the meaning of rule 10(2) of the Constitution of Kenya (protection of rights and fundamental freedoms) practice and procedure rules 2013 (Mutunga Rules).
2. That this honourable court be pleased to declare that the present cross petition before the court is incompetent and incurably defective for failure to having been supported by an affidavit.
3. That the cross petition be struck out with costs to the applicant.
4. That consequent to the grant of prayers above, the Honourable court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing Orders and/or favour the cause of justice.
The application is opposed by the Replying Affidavit of the 3rd Respondent sworn by Stephen Githinji and dated 13th February, 2020. The Respondent contends that the cross Petition is in order as the same has a supporting Affidavit attached to it and that the Application be dismissed and the suit be set down for hearing.
I have analyzed the Application and the response thereto, I have also analyzed the Cross Petition dated 25th July, 2019 together with the Supporting Affidavit dated 25th July, 2019 sworn by Peter Oltetia Semeiyo which is the subject of this Application.
I do find that the Cross Petition as filed is in order and does not in any way offend the Mutunga rules as alleged by the Petitioner. The Notice of Motion Application dated 23rd September, 2019 is dismissed. The matter to proceed for hearing. Parties are directed to get a hearing date at the registry.
DATED, SIGNED and DELIVERED ONLINE at NAROK on this 24th day of February, 2021.
Mohammed N. Kullow
Judge
24/2/2021
In the presence of: -
CA:Chuma
Parties and advocates: absent
Mohammed N. Kullow
Judge
24/2/2021