[2024] KEELC 5418 (KLR)
The court found that while the suit has been pending for a considerable period and the need to avoid delay is recognized under Article 159(2)(b) of the Constitution, the right to be heard is a fundamental principle that permeates the justice system. The 1st defendant's counsel provided valid reasons for the absence...
Source-derived case information.
- Citation
- [2024] KEELC 5418 (KLR)
- Parties
- Plaintiff: David Akongo Obila; Defendant: Sella Anyango Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased)); Defendant: The County Surveyor, Migori County; Defendant: The Director Of Survey; Defendant: The Land Registrar, Migori County; Defendant: The Hon Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 02 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Oral Application to Close Defence Case
- Outcome
- Application to close the defence case disallowed; final adjournment granted to defendants.
- Judges
- GMA Ongondo
- Legal Topics
- Adjournment of Hearing, Right to Be Heard, Delay of Justice, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Akongo Obila
Plaintiff
Sella Anyango Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased))
Defendant
The County Surveyor, Migori County
Defendant
The Director Of Survey
Defendant
The Land Registrar, Migori County
Defendant
The Hon Attorney General
Defendant
Procedural Posture
Environment and Land Case / Ruling on Oral Application to Close Defence Case
Legal Issues
- 1 Whether the defence case should be closed due to absence of the 1st defendant and other defendants.
- 2 Whether the reasons for adjournment advanced by the 1st defendant's counsel are valid.
- 3 Whether the right to be heard outweighs the need to avoid delay in the proceedings.
Ratio Decidendi
The court found that while the suit has been pending for a considerable period and the need to avoid delay is recognized under Article 159(2)(b) of the Constitution, the right to be heard is a fundamental principle that permeates the justice system. The 1st defendant's counsel provided valid reasons for the absence of the 1st defendant, namely indisposition, and requested a final adjournment. The court noted that previous adjournments had also been at the instance of the plaintiff. Balancing the competing interests of expeditious disposal and the right to a fair hearing, the court held that the application to close the defence case was not merited. The court granted a final adjournment to...
Court Disposition
Application to close the defence case disallowed; final adjournment granted to defendants.
Orders
- The application to have the defence case closed is disallowed with costs in the cause.
- Hearing of the defendants' case on priority on 23/9/2024 as last adjournment is granted to the defendants.
Full Case Text
Judgment text and source record
38 paragraphs
Obila v Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased) & 4 others (Environment & Land Case 02 of 2017) [2024] KEELC 5418 (KLR) (15 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5418 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment & Land Case 02 of 2017
GMA Ongondo, J
July 15, 2024
Between
David Akongo Obila
Plaintiff
and
Sella Anyango Aroko (Sued as personal and legal representative of the Estate of the Onditi Ouma (Deceased)
1st Defendant
The County Surveyor, Migori County
2nd Defendant
The Director Of Survey
3rd Defendant
The Land Registrar, Migori County
4th Defendant
The Hon Attorney General
5th Defendant
Ruling
1. The instant suit is scheduled for hearing of the defendants’ case today. Ms. W. Ochwal learned for the Plaintiff has generated an oral application that the said case be marked as closed.
2. The application is based on the grounds that:-a.The plaintiff’s case was closed on 6th July 2023b.The suit has been pending in court for the last seven years and cited Article 159 (2) (b) of the Constitution of Kenya 2010c.The matter was adjourned last time at the instance of the defendant’s counsel.
3. Ms. Bosire learned counsel for the 1st defendant has opposed the application and stated that the 1st defendant, a witness, is indisposed. That she received information on the indisposition, this morning.
4. The 1st defendant’s counsel referred to the court’s proceedings of 17th January 2024 when hearing of the suit was adjourned due to absence of the plaintiff and his counsel. So, she sought indulgence in form of last adjournment to enable the 1st defendant get a fair hearing herein.
5. The 2nd, 3rd and 4th defendants are absent today. They were duly served as disclosed in the Affidavit of service sworn on 11th July 2024.
6. In the circumstances, is there merit in the plaintiff’s application?
7. It is common baseline that the suit is part heard and the plaintiff’s case is closed.
8. Indeed, this suit is quite of age. This court is guided by Article 159 (2) (b) (supra) and other provisions of the Constitution and the law that justice shall not be delayed.
9. Moreover, the right to be heard is fundamental and permeates our entire justice system as noted in Articles 25 (c) 48,50(1) and 159 (2) (b) of the Constitution of Kenya 2010 and the case of James Kanyiita Nderitu =vs= Marios Philotas Ghikas & others (2016) eKLR.
10. The revelation from the proceedings of 17th January 2024 and 6th March 2024 is that hearing of the suit was adjourned at the instance of the plaintiff and court did not sit respectively.
11. The reasons given by the 1st defendant’s counsel are valid. The 1st defendant’s counsel to avail evidence of indisposition on the part of the 1st defendant during next date to be given by this court.
12. Thus, the application to have the defence case closed is not merited. The same is hereby disallowed with costs in the cause.
13. Hearing of the defendants case on priority on 23/9/2024 as last adjournment is granted to the defendants.
14. The 2nd,3rd, 4th and 5th defendants be served by the Plaintiff’s counsel.
It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI THIS 15TH DAY OF JULY, 2024. G.M.A. ONGONDOJUDGEIn presence of: -Ms. W. Ochwal learned counsel for the PlaintiffMs. Bosire learned counsel for the 1st defendantCourt Assistant – Tom Maurice