[2024] KEELC 5403 (KLR)
The court found that the applicant was given a fair opportunity to be heard, as required by law and constitutional provisions. However, the applicant's counsel failed to comply with clear court directions to file written submissions and did not attend court on the scheduled date, despite being duly notified. The...
Source-derived case information.
- Citation
- [2024] KEELC 5403 (KLR)
- Parties
- Applicant: Otieno Bolivers Ochieng; Respondent: Abel Apiyo Munda; Respondent: Samwel Onyango Okeyo; Respondent: Godwin Odoyo T/A Kariero Properties
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E001 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Stay and Review
- Outcome
- application struck out with costs to the 1st respondent
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Execution, Review of Court Orders, Noncompliance With Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno Bolivers Ochieng
Applicant
Abel Apiyo Munda
Respondent
Samwel Onyango Okeyo
Respondent
Godwin Odoyo T/A Kariero Properties
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Stay and Review
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending hearing and determination of the application.
- 2 Whether the applicant has established grounds for review of the ruling delivered on 23rd October 2023.
- 3 Whether failure to comply with court directions and nonattendance warrants dismissal of the application.
Ratio Decidendi
The court found that the applicant was given a fair opportunity to be heard, as required by law and constitutional provisions. However, the applicant's counsel failed to comply with clear court directions to file written submissions and did not attend court on the scheduled date, despite being duly notified. The court held that there was no justification for the noncompliance or nonattendance. As a result, the application was deemed inept and incapable of being sustained. The court therefore struck out the application with costs to the 1st respondent, emphasizing the importance of compliance with court orders and the duty of parties to diligently prosecute their applications.
Court Disposition
application struck out with costs to the 1st respondent
Orders
- The Notice of Motion dated 10th November 2023 is struck out with costs to the 1st respondent.
Full Case Text
Judgment text and source record
29 paragraphs
Ochieng v Munda & 2 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5403 (KLR) (18 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5403 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment and Land Miscellaneous Application E001 of 2023
GMA Ongondo, J
July 18, 2024
Between
Otieno Bolivers Ochieng
Appellant
and
Abel Apiyo Munda
1st Respondent
Samwel Onyango Okeyo
2nd Respondent
Godwin Odoyo T/A Kariero Properties
3rd Respondent
Ruling
1. This ruling is in respect of a Notice of Motion dated 10th November 2023 by the Appellant/Applicant through H. Obach and Partners Advocates for following orders ;-i.That this Honourable court be pleased to grant stay execution of the decree from the Ruling of Justice Mohamed N. Kullow delivered on the 23rd day of October 2023 pending the interpartes hearing and determination of this application.ii.That this Honourable court be pleased to review the ruling delivered on the 23rd day of October 2023. iii.That the costs of this Application be provided for.
2. The respondents through Odondi Awino and Company Advocates, opposed the application by way of Replying Affidavit sworn on 23/7/2024.
3. The court directed that the application be heard by written submissions as disclosed in the proceedings of 15/1/2023 and 6/12/2023 herein.
4. Notably, the applicant’s counsel failed to comply with the orders of 15/1/2023 and 6/12/2023.
5. Ms. Agade instructed by Odondi Awino learned counsel for the respondent has affirmed the applicant’s failure and urged the court to dismiss the application with costs.
6. Indeed, the applicant’s counsel was notified of the existence of this date as discerned in the notice issued by the Deputy Registrar of this court. There is no reason for noncompliance with the orders and nonattendance in court on the part of the applicant.
7. Clearly, the applicant was afforded a fair opportunity to be heard on the application as held in James Kanyiite Nderitu =vs= Marios Philotas Ghukas and another (2016) eKLR and Articles 48 and 50 (1) of the Constitution of Kenya 2010.
8. Nonetheless, the applicant’s counsel failed to urge the application as directed by the court.
9. In the foregone, the application is inept and fails. The same is hereby struck out with costs to the 1st respondent.
10. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI THIS 18TH DAY OF JULY, 2024. G.M.A. ONGONDOJUDGEIn presence of: -Ms. Agade instructed by learned counsel Mr. Odondi Owinofor 1st RespondentCourt Assistant – Tom Maurice