[2023] KEELC 21461 (KLR)
The court found that the application for stay was unchallenged and merited, as the respondent failed to respond despite being duly served. The court considered section 6 of the Civil Procedure Act, which provides for the stay of proceedings where there is a pending suit between the same parties over the same subject...
Source-derived case information.
- Citation
- [2023] KEELC 21461 (KLR)
- Parties
- Plaintiff: Dancan Ogutu; Defendant: Leokadia Atieno Mulungi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons E001 of 2023
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application for Stay
- Outcome
- application allowed
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Proceedings, Jurisdiction of Magistrates Courts, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dancan Ogutu
Plaintiff
Leokadia Atieno Mulungi
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Application for Stay
Legal Issues
- 1 Whether the Mbita Principal Magistrate’s Court ELC Case No. 015 of 2023 should be stayed pending determination of Homa Bay High Court ELC Case No. E001 of 2023.
- 2 Whether the value of the suit land exceeds the jurisdictional limits of the Mbita Principal Magistrate’s Court.
Ratio Decidendi
The court found that the application for stay was unchallenged and merited, as the respondent failed to respond despite being duly served. The court considered section 6 of the Civil Procedure Act, which provides for the stay of proceedings where there is a pending suit between the same parties over the same subject matter. The court was satisfied that the value of the suit land exceeded the jurisdictional limits of the Mbita Principal Magistrate’s Court and that the two cases involved the same parties and subject matter. Consequently, the court allowed the application and ordered a stay of the proceedings in the Mbita Principal Magistrate’s Court ELC Case No. 015 of 2023 pending the...
Court Disposition
application allowed
Orders
- Mbita Principal Magistrate’s Court ELC Case Number 015 of 2023 is stayed pending the hearing and determination of Homa Bay High Court ELC Case No. E001 of 2023 (O.S).
- Costs of the application be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
Ogutu v Mulungi (Enviromental and Land Originating Summons E001 of 2023) [2023] KEELC 21461 (KLR) (9 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21461 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Enviromental and Land Originating Summons E001 of 2023
GMA Ongondo, J
November 9, 2023
Between
Dancan Ogutu
Plaintiff
and
Leokadia Atieno Mulungi
Defendant
Ruling
1. By a Notice of Motion application dated October 19, 2023, the applicant/plaintiff, Dancan Ogutu through the firm of Kerario Marwa and Company Advocates sought the following orders:a.Spentb.That Mbita Principal Magistrate’s Court ELC Case Number 015 of 2023 be stayed pending the hearing and determination of the HomaBay High Court ELC Case No. E001 of 2023(O.S)c.Cost of this Application be in the cause.
2. In brief, the applicant laments that Mbita Principal Magistrate’s Court, Environment and Land Case Number E015 of 2023 concerns the suit land herein, LR Kaksingri/Kagutu/Waregi/652 and same parties. That the value of suit land and exceeds the jurisdictional limits of Mbita Principal Magistrate’s Court.
3. The application was duly served on the respondent/defendant as per the Affidavit of service sworn and filed herein on October 8, 2023.
4. Mr Achola instructed by Kerario Marwa and Company Advocates for the applicant/plaintiff has informed this court that:“……no response to the Notice of Motion. May the Notice of Motion be allowed accordingly.”
5. Clearly, the Application was duly served on the respondent/defendant who has not respondent to the same. I thus, find the application unchallenged and merited bearing in mind section 6 of the Civil Procedure Act (Cap 21 Laws of Kenya).
6. So, the application is hereby allowed in terms of order of stay sought therein as stated in paragraph 1(b) hereinabove.
7. Costs of the application be in the cause.
DELIVERED, DATED AND SIGNED AT HOMABAY THIS 9TH DAY OF NOVEMBER 2023. G.M.A ONG’ONDOJUDGE