[2024] KEELC 13687 (KLR)
The court found that the defendants' oral application had merit because the right to be heard is a fundamental principle of justice. Since the two applications are interrelated and the plaintiff's application seeks injunctive orders, including exhumation, it would be prejudicial to the defendants if their...
Source-derived case information.
- Citation
- [2024] KEELC 13687 (KLR)
- Parties
- Plaintiff: James Kumba Nyabera (Suing as the Personal Representative of the Estate of Edward Nyabera Kumba); Defendant: John Getangita Mohabe (Sued as the Personal Representative of the Estate of Nicholas Mohabe Wambura); Defendant: Thomas Omahe Philip
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E011 of 2024
- Procedural Posture
- Environment and Land Case / Ruling on Oral Application Regarding Hearing Sequence of Two Motions
- Outcome
- Defendants' oral application allowed; ruling on plaintiff's application held in abeyance; directions given for written submissions; interim orders extended.
- Judges
- GMA Ongondo
- Legal Topics
- Right to Be Heard, Interlocutory Injunctions, Exhumation Orders, Case Management, Temporary Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kumba Nyabera (Suing as the Personal Representative of the Estate of Edward Nyabera Kumba)
Plaintiff
John Getangita Mohabe (Sued as the Personal Representative of the Estate of Nicholas Mohabe Wambura)
Defendant
Thomas Omahe Philip
Defendant
Procedural Posture
Environment and Land Case / Ruling on Oral Application Regarding Hearing Sequence of Two Motions
Legal Issues
- 1 Whether the defendants' oral application to have their notice of motion heard before the plaintiff's application should be granted.
- 2 Whether the right to be heard requires the court to delay ruling on the plaintiff's application pending the defendants' application.
- 3 Whether the applications are sufficiently interrelated to justify altering the hearing sequence.
Ratio Decidendi
The court found that the defendants' oral application had merit because the right to be heard is a fundamental principle of justice. Since the two applications are interrelated and the plaintiff's application seeks injunctive orders, including exhumation, it would be prejudicial to the defendants if their application was not heard first. The court therefore held the ruling on the plaintiff's application in abeyance, directed that both parties file and serve written submissions on the defendants' application within specified timelines, and extended the interim injunctive orders. The court set the ruling on the defendants' application for a later date, ensuring that both parties have a fair...
Court Disposition
Defendants' oral application allowed; ruling on plaintiff's application held in abeyance; directions given for written submissions; interim orders extended.
Orders
- Ruling on the plaintiff's application is held in abeyance pending the outcome of the defendants' application.
- Defendants' and plaintiff's counsel to file and serve written submissions within seven days of service of the defendants' submissions.
Full Case Text
Judgment text and source record
29 paragraphs
Nyabera (Suing as the Personal Representative of the Estate of Edward Nyabera Kumba) v Mohabe (Sued as the Personal Representative of the Estate of Nicholas Mohabe Wambura) & another (Environment & Land Case E011 of 2024) [2024] KEELC 13687 (KLR) (29 October 2024) (Ruling)
Neutral citation: [2024] KEELC 13687 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment & Land Case E011 of 2024
GMA Ongondo, J
October 29, 2024
Between
James Kumba Nyabera (Suing as the Personal Representative of the Estate of Edward Nyabera Kumba)
Plaintiff
and
John Getangita Mohabe (Sued as the Personal Representative of the Estate of Nicholas Mohabe Wambura)
1st Defendant
Thomas Omahe Philip
2nd Defendant
Ruling
1. This ruling pertains to an oral application generated by Mr David Otieno instructed by Jura learned counsel for the defendants that due to the nature of the defendants’ notice of motion dated 23rd October 2024 (The second application), the same be heard and determined before the plaintiff’s notice of motion dated 9th August 2024 (The first application) herein.
2. Counsel has asserted the that the first application is set for ruling today, 29th October 2024. That the defendants filed the second application fixed for directions today and there is replying Affidavit thereto duly filed and served. That the two applications are interrelated. That therefore, this application be allowed hence, the defendants be accorded an opportunity to be heard in the first application.
3. Mr Sam Onyango learned counsel for the plaintiff has opposed the application on the grounds that the second application has come too late in the day and urged this court to deliver ruling in regard to the first application. That the defendants would have an option of setting aside the ruling or prefer an appeal against it.
4. In a rejoinder, learned counsel Mr Otieno has asserted that injunctive orders inclusive of exhumation of body in issue are sought in the first application. That since the first application is related to the second application, the defendants may prejudiced if the defendant’s oral application is not granted.
5. In the foregone, is there merit in the defendants’ oral application?
6. It is borne in mind that the first application is for temporary injunctive relief against the defendants in respect of the suit land reference number Bukira/Bwisaboka/26. In the second application, the defendants are seeking to be heard in the first application.
7. The right to be heard is fundamental and permeates the entire justice system; see James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR and Philip Chemwolo and another-vs-Augustine Kubende (1986) eKLR .
8. In the premises, this application has merit. So, ruling on the first application is held in abeyance pending the outcome of the second application to be heard by written submissions on priority basis.
9. I therefore, order and direct that the defendants’ counsel and the plaintiff’s counsel to file and serve submissions within the next seven (7) and seven (7) days from the date of service of the defendant’s submissions respectively.
10. Interim injunctive orders herein extended accordingly.
11. Ruling on the second application is hereby set for 18th November 2024.
12. It is so ordered.
DATED AND DELIVERED AT MIGORI THIS 29TH DAY OF OCTOBER 2024. G M A ONGONDOJUDGEIn Presence of ;-Mr Sam Onyango learned counsel for the plaintiffMr David Otieno learned counsel for the defendantsTom Maurice, court assistant