[2022] KEELC 2438 (KLR)
The court held that the pending application for review and stay of judgment is an interlocutory matter that must be heard and determined on its merits before the main petition is disposed of. This is mandated by the constitutional right to a fair hearing and the audi alteram partem rule, which require that no...
Source-derived case information.
- Citation
- [2022] KEELC 2438 (KLR)
- Parties
- Applicant: Samuel Nyauke; Respondent: Homa-Bay Sub-County Administrator; Respondent: Attorney General; Respondent: Earnest Bin Amito; Respondent: Joint Base Nava Enterprises Limited; Respondent: Director General National Environment Management Authority (NEMA)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition E001 of 2022
- Procedural Posture
- Environment and Land Petition / Interlocutory Application for Stay of Judgment and Review of Orders Pending Hearing of Application
- Outcome
- Stay of pending judgment granted; directions issued for hearing of the application for review.
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Judgment, Review of Court Orders, Right to Be Heard, Audi Alteram Partem, Written Submissions, Alternative Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Nyauke
Applicant
Homa-Bay Sub-County Administrator
Respondent
Attorney General
Respondent
Earnest Bin Amito
Respondent
Joint Base Nava Enterprises Limited
Respondent
Director General National Environment Management Authority (NEMA)
Respondent
Procedural Posture
Environment and Land Petition / Interlocutory Application for Stay of Judgment and Review of Orders Pending Hearing of Application
Legal Issues
- 1 Whether the pending application seeking review of the court's orders and stay of judgment should be heard before delivery of the pending judgment.
- 2 Whether the parties are entitled to a fair hearing on the interlocutory application before the main petition is determined.
Ratio Decidendi
The court held that the pending application for review and stay of judgment is an interlocutory matter that must be heard and determined on its merits before the main petition is disposed of. This is mandated by the constitutional right to a fair hearing and the audi alteram partem rule, which require that no adverse decision be made without giving the affected party an opportunity to be heard. The court emphasized that procedural fairness and justice demand that the application be considered prior to delivery of judgment in the main petition. Accordingly, the court stayed the delivery of the pending judgment and set timelines for the parties to file and serve written submissions on the...
Court Disposition
Stay of pending judgment granted; directions issued for hearing of the application for review.
Orders
- There be stay of the pending judgment to pave way for hearing on merits the pending application dated 21st March 2022.
- The pending application to be heard by way of written submissions; applicant to file and serve within three days, respondents within seven days thereafter.
Full Case Text
Judgment text and source record
31 paragraphs
Nyauke v Homa-Bay Sub-County Administrator Officer Commanding Police Division Homa-Bay & 4 others (Environment & Land Petition E001 of 2022) [2022] KEELC 2438 (KLR) (28 April 2022) (Ruling)
Neutral citation: [2022] KEELC 2438 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Petition E001 of 2022
GMA Ongondo, J
April 28, 2022
Between
Samuel Nyauke
Petitioner
and
Homa-Bay Sub-County Administrator
1st Respondent
Attorney General
2nd Respondent
Earnest Bin Amito
3rd Respondent
Joint Base Nava Enterprises Limited
4th Respondent
Director General National Environment Management Authority (NEMA)
5th Respondent
Ruling
1. The instant ruling has been precipitated by the twin pending matters namely;a.Judgment in respect of this petition dated 2nd February 2022 and duly lodged in court on 3rd February 2022 set for delivery today (the pending judgment herein)b.An application by way of notice of motion dated 21st March 2022 and filed herein on 25th March 2022 by the petitioner, Samwel O. Nyauke (the pending application herein).
2. As at 2nd March 2022, the petitioner and the 1st to 5th respondents had filed their submissions in regard to this petition. Therefore, judgment was set as noted in paragraph 1 (a) hereinabove and the 6th respondent’s counsel was ordered and directed to file and serve submissions within three (3) days from that date. Accordingly, on 8th March 2022, the 6th respondent’s counsel filed the submissions dated 1st March 2022.
3. On 25th March 2022, the petitioner mounted the pending application seeking review of this court’s orders made on 2nd March 2022. The pending application targets to arrest the pending judgment.
4. Notably, the pending application is an interlocutory matter in the present petition. Naturally, it calls for fair hearing and determination on merits even before the disposal of the petition by virtue of Articles 48, 50 (1) and 25 ( c) of the Constitution of Kenya, 2010.
5. A fair opportunity to be heard (the audi alterman partem Rule) is a fundamental principle of justice; see Halsbury’s Laws of England 5th Edition 2010 volume 61 paragraph 639.
6. It is trite law that the right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system; see the decision in Onyango Oloo-vs-Attorney General (1986-1989) EA 456 applied in the case of James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR.
7. Moreover, this court is guided by sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya alongside section 3 of the Environment and Land Court Act, 2015 (2011) in this matter. The bottom line is to meet the best ends of justice.
8. Wherefore, I hereby order and direct thus;a.There be stay of the pending judgment to pave way for hearing on merits the pending application dated 21st March 2022 and filed in court on 21st March 2022. b.The pending application be heard by way of written submissions. The applicant/Petitioner to file and serve submissions within three (3) days from this date while the respondents’ counsel to file and serve submissions within seven(7) days from the date of service of the applicant’s submissions.c.The parties are still encouraged to embrace Alternative forms of dispute resolution under Articles 60(1) (g) and 159 (2) (b) of the Constitution of Kenya,2010d.Ruling on the pending application dated 21st March 2022 and filed in court on 25th March 2022 fixed for 31st May 2022.
RULING DATED, DELIVERED AND SIGNED AT HOMA BAY THIS 28TH DAY OF APRIL 2022. G.M.A ONG’ONDOJUDGE1. The Petitioner, present in person.2. Mr. A. Oluoch, learned counsel for the 5th respondent and holding brief for learned counsel Mr. R. Ochieng for the 4th respondent.3. Mr. Ngararu Maina, learned counsel for the 6th respondent4. Terence, court assistant.G.M.A ONG’ONDOJUDGE