[2024] KEELC 13231 (KLR)
The court found that although the respondents' replying affidavit was filed outside the timeline set by the court and had not been served on the applicants, the overriding consideration was the respondents' constitutional right to be heard and to a fair hearing. The court emphasized that procedural technicalities...
Source-derived case information.
- Citation
- [2024] KEELC 13231 (KLR)
- Parties
- Appellant: Benard Odhiambo Okelo; Appellant: Erick Ochieng Panyako & 2 others; Respondent: Micheal Ooko; Respondent: John Ouma Olith
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Land Case Appeal E050 of 2024
- Procedural Posture
- Land Case Appeal / Ruling on Interlocutory Application to Expunge Replying Affidavit
- Outcome
- application dismissed
- Judges
- GMA Ongondo
- Legal Topics
- Filing Timelines, Right to Fair Hearing, Service of Documents, Expunging Affidavits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Odhiambo Okelo
Appellant
Erick Ochieng Panyako & 2 others
Appellant
Micheal Ooko
Respondent
John Ouma Olith
Respondent
Procedural Posture
Land Case Appeal / Ruling on Interlocutory Application to Expunge Replying Affidavit
Legal Issues
- 1 Whether the respondents' replying affidavit should be expunged from the record for being filed and served out of time.
- 2 Whether the respondents' right to be heard and fair hearing under the Constitution overrides procedural irregularities in filing and service.
Ratio Decidendi
The court found that although the respondents' replying affidavit was filed outside the timeline set by the court and had not been served on the applicants, the overriding consideration was the respondents' constitutional right to be heard and to a fair hearing. The court emphasized that procedural technicalities should not be used to defeat substantive justice, particularly where fundamental rights are implicated. The court relied on constitutional provisions and established case law to hold that the affidavit should remain on record, provided it is served or re-served on the applicants, and that the applicants are given an opportunity to file a rejoinder. The application to expunge the...
Court Disposition
application dismissed
Orders
- The respondents' replying affidavit sworn on 11th November 2024 is duly filed and shall be re-served upon the applicants' counsel forthwith.
- The applicants' counsel to file and serve any rejoinder to the replying affidavit within fourteen days from the date of service of the said affidavit.
Full Case Text
Judgment text and source record
27 paragraphs
Okelo & 3 others v Ooko & another (Land Case Appeal E050 of 2024) [2024] KEELC 13231 (KLR) (13 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13231 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Land Case Appeal E050 of 2024
GMA Ongondo, J
November 13, 2024
Between
Benard Odhiambo Okelo
1st Appellant
Erick Ochieng Panyako & 2 others & 2 others
2nd Appellant
and
Micheal Ooko
1st Respondent
John Ouma Olith
2nd Respondent
Ruling
1. This ruling is in respect of an application by Mr Gembe instructed by Oduor learned counsel for the appellant that the respondents’ replying affidavit sworn on 11th November 2024 in response to the applicants’ notice of motion dated 23rd October 2024 (The motion), be expunged from the record herein for being an illegality.
2. It is the assertion of the applicants’ counsel that the respondents have not complied with the court’s orders given and issued on 29th October 2024. That the respondents’ replying affidavit was filed outside the timeline set by court. That it has not been served on the applicants.
3. Ms Nyarige learned counsel for the respondents has opposed the application to the effect that the motion was served late. That however, the same has been responded to by the replying affidavit which can be served or re-served on the applicants for possible compromise of the motion.
4. Having considered the motion, the court’s directions of 29th October 2024, the replying affidavit and the rival arguments herein, is the application merited?
5. The replying affidavit is in response to the motion. The same is in the spirit of the respondents’ right of access to justice and unlimited right to fair hearing under Articles 48, 50 (1) and 25 (c) of the Constitution of Kenya 2010; see also Philip Chemwolo and another -vs-Augustine Kubende (1986) eKLR.
6. It is trite law that the right to be heard is fundamental and permeates the entire justice system; see James Kanyiita Nderitu and another -vs-Marios Philotas Ghikas and another (2016) eKLR.
7. I, therefore, find the application unmeritorious and hereby disallow the same with no orders as to costs.
8. Thus, I hereby order and direct as follows;a.The respondents’ replying affidavit sworn on 11th November 2024 is duly filed and the same shall be re-served upon the applicants’ counsel forthwith.b.The applicants’ counsel to file and serve any rejoinder to the replying affidavit within fourteen days from the date of service of the said affidavit.c.The motion is fixed for further directions on 4th February 2205. d.The parties are encouraged to embrace alternative dispute resolution methods in the motion and the entire mattere.Interim orders issued on 29th October 2024, extended.f)Ordered accordingly
DATED AND DELIVERED AT HOMA BAY THIS 13TH DAY OF NOVEMBER 2024. G. M. A ONG’ONDOJUDGEPRESENT;1. Mr. Gembe instructed by Oduor learned counsel for the applicants2. Ms. Nyarige learned counsel for the respondents3. F. Mutiva, court assistan