[2022] KEELC 85 (KLR)
The court determined that before delivering judgment in the present originating summons, it is necessary to peruse the records of the previous related cases—Homa Bay Senior Resident Magistrate’s Court Miscellaneous Application No. 34 of 2009 and Kisii High Court Land Case No. 336 of 2013—to ascertain whether the...
Source-derived case information.
- Citation
- [2022] KEELC 85 (KLR)
- Parties
- Plaintiff: Charles Juma Ongele; Defendant: Consolata Ogondi Obano
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 45 of 2021
- Procedural Posture
- Originating Summons / Pre Judgment Interlocutory Ruling
- Outcome
- Interlocutory order for production of records before judgment.
- Judges
- GMA Ongondo
- Legal Topics
- Res Judicata, Originating Summons Procedure, Land Dispute, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Juma Ongele
Plaintiff
Consolata Ogondi Obano
Defendant
Procedural Posture
Originating Summons / Pre Judgment Interlocutory Ruling
Legal Issues
- 1 Whether the doctrine of res judicata applies to bar the present suit.
- 2 Whether the court should peruse records of previous related cases before delivering judgment.
Ratio Decidendi
The court determined that before delivering judgment in the present originating summons, it is necessary to peruse the records of the previous related cases—Homa Bay Senior Resident Magistrate’s Court Miscellaneous Application No. 34 of 2009 and Kisii High Court Land Case No. 336 of 2013—to ascertain whether the doctrine of res judicata applies. This step is essential to ensure that justice is done and that the court does not proceed to determine a matter that may have already been conclusively adjudicated. The court is guided by the constitutional imperative to do justice and the statutory provisions empowering it to manage proceedings efficiently and prevent abuse of process....
Court Disposition
Interlocutory order for production of records before judgment.
Orders
- The Deputy Registrar is directed to urgently call for the original record and certified typed copies of the proceedings and determination, if any, in Homa Bay Senior Resident Magistrate’s Court Miscellaneous Application No. 34 of 2009 and Kisii Environment and Land Court Land Case No. 336 of 2013, for perusal by...
- The matter is fixed for judgment on 31st May 2022.
Full Case Text
Judgment text and source record
23 paragraphs
Ongele v Obano (Environment & Land Case 45 of 2021) [2022] KEELC 85 (KLR) (28 April 2022) (Ruling)
Neutral citation: [2022] KEELC 85 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 45 of 2021
GMA Ongondo, J
April 28, 2022
Between
Charles Juma Ongele
Plaintiff
and
Consolata Ogondi Obano
Defendant
Ruling
1. The present ruling is pursuant to this court’s perusal of the pleadings, evidence and submissions of the respective parties during preparation of judgment in the instant suit which was generated by way of an Originating Summons dated 12th May 2014 and filed herein on 16th May 2014.
2. In paragraph 5 of the plaintiff’s affidavit in support of the Originating Summons, a decree in Homa Bay Senior Resident Magistrate’s Court Misc.Application No. 34 of 2009 (PExhibit 2 herein), is discerned.
3. Similarly, paragraphs 5, 7, 13, 14, 15 and 19 of the amended replying affidavit filed in court on 19th November 2020, disclose the said miscellaneous application as well as Kisii High Court Land case No. 336 of 2013.
4. Moreover, on 26th January 2021, the defendant, Consolata Ogondi (DW1) stated in examination in chief, in , inter alia;“.......I rely on my amended replying affidavit sworn on 20th December 2020 as part of my evidence (Replying affidavit adopted accordingly).I rely on documents marked .......(DExhibits 1 to 5 admitted accordingly).....”
5. Clearly, pure points of law including res judicata are raised at this stage of the suit which call for perusal of the records of the cases pointed out in paragraphs 2 and 3 hereinabove before the determination of this suit in the best ends of justice. I am guided by Articles 10 and 159 (2) (b) of the Constitution of Kenya, 2010 as well as sections 1A, 1B, 3, 3A, 6 and 7 of the Civil Procedure Act (Chapter 21 Laws of Kenya) as read with section 3 of the Environment and Land Court Act, 2015 (2011) accordingly.
6. It must be noted that the main concern of the court is to do justice to the parties; see Patel v E.A cargo Handling services Limited(1974) E.A 75
7. In the foregone, I order and direct that;a.The Deputy Registrar of this Court to urgently call for the original record and certified typed copies of the proceedings and determination, if any, in regard to Homa Bay Senior Resident Magistrate’s Court Miscellaneous application number 34 of 2009 and Kisii Environment and Land Court land case number 336 of 2013, for perusal by this court before delivery of judgment in the instant suit.b.This matter is fixed for Judgment on 31st May 2022.
8. It is so ordered.
DATED, DELIVERED AND SIGNED AT HOMA BAY THIS 28TH DAY OF APRIL 2022. 9G.M.A ONG’ONDOJUDGEPresent:Plaintiff, present in personDefendant-Present. No appearance for himTerence, court assistant.