[2023] KEELC 21477 (KLR)
The court held that the 4th respondent was entitled to withdraw the preliminary objection as a matter of right. The withdrawal was not opposed by any other party, and there was no basis to deny the request. The court further found that, in the circumstances, it was appropriate to mark the preliminary objection as...
Source-derived case information.
- Citation
- [2023] KEELC 21477 (KLR)
- Parties
- Appellant: Elizabeth Wanjiku Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee)); Respondent: Lawrence Ochieng Oloo; Respondent: Ogada Osuta; Respondent: Auma Adek Okech; Respondent: Jim Otieno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E003 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Withdrawal of Preliminary Objection
- Outcome
- Notice of preliminary objection marked as withdrawn; no order as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Preliminary Objection, Appeals Process, Withdrawal of Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wanjiku Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee))
Appellant
Lawrence Ochieng Oloo
Respondent
Ogada Osuta
Respondent
Auma Adek Okech
Respondent
Jim Otieno
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Withdrawal of Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection filed by the 4th respondent should be withdrawn as requested.
- 2 Whether the withdrawal of the preliminary objection should attract any order as to costs.
Ratio Decidendi
The court held that the 4th respondent was entitled to withdraw the preliminary objection as a matter of right. The withdrawal was not opposed by any other party, and there was no basis to deny the request. The court further found that, in the circumstances, it was appropriate to mark the preliminary objection as withdrawn with no order as to costs. The ruling emphasized that preliminary objections must be based on points of law and that parties retain the right to withdraw such objections before they are determined. The court exercised its discretion to ensure fairness and efficiency in the proceedings by allowing the withdrawal without penalizing any party with costs.
Court Disposition
Notice of preliminary objection marked as withdrawn; no order as to costs.
Orders
- The notice of preliminary objection is marked as withdrawn as sought by the 4th respondent.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee) v Oloo & 3 others (Environment and Land Appeal E003 of 2023) [2023] KEELC 21477 (KLR) (9 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21477 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E003 of 2023
GMA Ongondo, J
November 9, 2023
Between
Elizabeth Wanjiku Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee)
Plaintiff
and
Lawrence Ochieng Oloo
1st Defendant
Ogada Osuta
2nd Defendant
Auma Adek Okech
3rd Defendant
Jim Otieno
4th Defendant
(Being an appeal from the judgment of the Principal Magistrate Court at Ndhiwa in PMC. ELC E008 OF 2021 delivered by Hon. ONZERE E.M. Principal Magistrate on 15th December 2022)
Ruling
1. By a notice of Preliminary Objection duly filed herein, the 4th respondent through Ongoso Ayama and Company Advocates is seeking that this appeal should be dismissed with costs on the following grounds;a.The appeal offends provisions of sections 79G of the Civil Procedure Act.b.The appeal offends order 43 rule (3) of the Civil Procedure Rules, 2010. c.The appeal offends Order 43 Rule (4) of the Civil Procedure Rules, 2010.
2. The appeal was commenced by a memorandum of appeal dated 17th December 2023. The grounds thereof are set out on the said memorandum.
3. On 8th November 2023, the 4th respondent’s counsel filed a notice of withdrawal of the said preliminary objection.
4. Ms. L.K Obwanda learned counsel for the appellant as well as Ms. Akinyi instructed by Quinter Adoyo learned counsel for the 1st and 3rd respondents, have no objection to the withdrawal of the preliminary objection.
5. This court is aware that a preliminary objection must be on points of law and may dispose of a suit; see Mukisa Biscuit Manufacturing Company Limited versus West End Distributors Limited (1969) EA 696 at 700.
6. The 4th respondent has the right to withdraw the preliminary objection. The withdrawal is merited in this circumstance.
7. In the result, the notice of preliminary be and is hereby marked as withdrawn as sought by the 4th respondent with no orders as to costs.
8. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMABAY THIS 9TH DAY OF NOVEMBER 2023. G.M.A ONG’ONDOJUDGE1. L.K Obwanda holding brief for Kuke learned counsel for appellant.2. Ms Akinyi holding brief for Adoyo learned counsel for 1st and 3rd Respondents.3. Mr. Ongoso learned counsel for 4th Respondent.