[2024] KEELC 380 (KLR)
The court found that the applicant failed to comply with directions to serve and file submissions, indicating a lack of interest in prosecuting the application. Additionally, the orders sought were already the subject of a similar application in Busia CMC Misc Application No E04 of 2022, rendering the present...
Source-derived case information.
- Citation
- [2024] KEELC 380 (KLR)
- Parties
- Applicant: Zakaria Mwaniki Mugwe; Respondent: Benard Ojwang; Respondent: Susan Ayite Owang; Respondent: Sharon Ojwang; Respondent: Philice Ojwang; Respondent: Dibora Ojwang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E005 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Strike Out Application
- Outcome
- application struck out with costs
- Judges
- BN Olao
- Legal Topics
- Striking Out Application, Service of Process, Stay of Execution, Leave to File Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakaria Mwaniki Mugwe
Applicant
Benard Ojwang
Respondent
Susan Ayite Owang
Respondent
Sharon Ojwang
Respondent
Philice Ojwang
Respondent
Dibora Ojwang
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Strike Out Application
Legal Issues
- 1 Whether the applicant complied with court directions regarding service and filing of submissions.
- 2 Whether the application was rendered moot by a similar order already granted in a previous matter.
- 3 Whether the applicant complied with the Advocate Remuneration Order in seeking leave to file a reference.
Ratio Decidendi
The court found that the applicant failed to comply with directions to serve and file submissions, indicating a lack of interest in prosecuting the application. Additionally, the orders sought were already the subject of a similar application in Busia CMC Misc Application No E04 of 2022, rendering the present application moot. The applicant also failed to comply with the procedural requirements under the Advocate Remuneration Order for seeking leave to file a reference, as the Bill of Costs was not annexed and there was no evidence of compliance with paragraph 11(1) and (2). Consequently, the Notice of Motion dated 14th June 2023 was struck out with costs to the 1st Interested Party.
Court Disposition
application struck out with costs
Orders
- The Notice of Motion dated 14th June 2023 is struck out.
- Costs awarded to the 1st Interested Party.
Full Case Text
Judgment text and source record
29 paragraphs
Mugwe v Ojwang & 4 others (Environment and Land Miscellaneous Application E005 of 2023) [2024] KEELC 380 (KLR) (31 January 2024) (Ruling)
Neutral citation: [2024] KEELC 380 (KLR)
Republic of Kenya
In the Environment and Land Court at Busia
Environment and Land Miscellaneous Application E005 of 2023
BN Olao, J
January 31, 2024
Between
Zakaria Mwaniki Mugwe
Plaintiff
and
Benard Ojwang
1st Defendant
Susan Ayite Owang
2nd Defendant
Sharon Ojwang
3rd Defendant
Philice Ojwang
4th Defendant
Dibora Ojwang
5th Defendant
Ruling
1. The Applicants Notice of Motion dated 14th June 2023 of Motion was placed before Koross J at Siaya ELC on 22nd June 2023. The Judge listed the matter as urgent and directed that it be served upon the Respondent and Interested Parties within 5 days. They would then have 7 days to respond.
2. Todate, there is no evidence to show that the Applicant filed and served submissions as directed by KOROSS J. On 16th October 2023 Mr. Onsongo for the 1st Interested Party informed the Deputy Registrar that he had not been served with any submissions as directed by Koross J.
3. The Deputy Registrar observed that the Applicant was “not keen on prosecuting the application.”
4. The matter was listed for mention today but none of the parties nor counsel has attended. That is strange for a matter which was filed under certificate of urgency in June 2023. I agree with the Deputy Registrar that the Applicant has lost interest in the matter.
5. Most importantly I notice from paragraph 5 of the replying affidavit by Sebastian Bwire the 1st Interested Party and dated 7th July 2023 that the orders being sought in the Notice of Motion dated 14th June 2023 were infact the subject of a similar application for stay which was granted by the Magistrate on 16th June 2023 in Busia CMC Misc Application No E04 of 2022. With regard to the prayer for leave to file a reference from the decision of the taxing master, I do not see any compliance with the provisions of paragraph 11(1) and (2) of the Advocate Remuneration Order. Even the Bill of Costs itself is not annexed to enable me exercise my discretion.
6. The Notice of Motion dated 14th June 2023 is hereby struck out with costs to the 1st Interested Party.
BOAZ N. OLAOJUDGE31ST JANUARY 2024RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 31ST DAY OF JANUARY 2024. BOAZ N. OLAOJUDGE31ST JANUARY 2024