[2024] KEELC 5032 (KLR)
The court found that the defendant was duly served with the application but failed to respond. In the absence of any opposition, and guided by the constitutional imperative that justice shall not be delayed, the court held that the application was unchallenged and merited. The court allowed the application for leave...
Source-derived case information.
- Citation
- [2024] KEELC 5032 (KLR)
- Parties
- Plaintiff: Joseph Onyango Ogosi; Defendant: Cornel Akacha Gworo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2022
- Procedural Posture
- Notice of Motion / Ruling on Application to Amend Plaint
- Outcome
- Application allowed.
- Judges
- GMA Ongondo
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Onyango Ogosi
Plaintiff
Cornel Akacha Gworo
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include Jacqueline Adhiambo Obegwe as the 2nd defendant.
- 2 Whether the application should be allowed where the defendant was duly served but failed to respond.
Ratio Decidendi
The court found that the defendant was duly served with the application but failed to respond. In the absence of any opposition, and guided by the constitutional imperative that justice shall not be delayed, the court held that the application was unchallenged and merited. The court allowed the application for leave to amend the plaint and to join Jacqueline Adhiambo Obegwe as the 2nd defendant, as sought by the plaintiff.
Court Disposition
Application allowed.
Orders
- Leave is granted to the plaintiff to amend the plaint and include Jacqueline Adhiambo Obegwe as the 2nd defendant.
- The draft amended plaint is deemed properly filed upon payment of requisite court filing fee.
Full Case Text
Judgment text and source record
24 paragraphs
Ogosi v Gworo (Environment & Land Case 5 of 2022) [2024] KEELC 5032 (KLR) (1 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5032 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 5 of 2022
GMA Ongondo, J
July 1, 2024
Between
Joseph Onyango Ogosi
Plaintiff
and
Cornel Akacha Gworo
Defendant
Ruling
1. By a Notice of Motion application dated 17th May 2024, the plaintiff/applicant, Joseph Onyango Ogosi through S M Sagwe and Company Advocates, is seeking the orders that he be granted leave to the amend the plaint and include one Jacqueline Adhiambo Obegwe as the 2nd defendant in this suit and that the draft amended plaint be deemed properly filed upon payment of requisite court filing fee and costs of the application be in the cause.
2. The defendant/respondent was duly served as shown in the affidavit of service sworn on 25th June 2024 by Walter Juma Opiyo, a duly authorised court Process Server.
3. Be that as if may, the defendant/respondent failed to reply to the application.
4. It is trite law that before an adverse decision is made against a party in a case, that party must be given an opportunity to be heard; see James Kanyiita Nderitu and another -versus Marios Philotas Ghikas and another (2016) eKLR.
5. In the instant application, the defendant /respondent duly served failed to respond to the application.
6. This court is guided by Article 159 (2) (b) of the Constitution of Kenya, 2010 which provides;“Justice shall not be delayed”.
7. In the premises, the application is unchallenged and merited.
8. Wherefore, the application is hereby allowed in terms of orders 1, 2 and 3 sought therein and as stated in paragraph 1 hereinabove.
9. It is so ordered
DATED AND DELIVERED AT HOMA BAY THIS 1ST DAY OF JULY 2024G.M.A ONG’ONDOJUDGEIn the presence of;a. Mr S M Sagwe learned counsel for the plaintiff/applicantb. Luanga and Mutiva, court assistants