[2022] KEELC 88 (KLR)
The court determined that before delivering judgment in the present suit, it is necessary to peruse the records of Homa Bay Senior Resident Magistrate’s Court Misc. Application No. 34 of 2009 and Kisii High Court Land Case No. 336 of 2013. This is to ascertain whether the doctrine of res judicata applies and to...
Source-derived case information.
- Citation
- [2022] KEELC 88 (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, Case Record Perusal, Land Disputes, Court Powers, Judicial Discretion
- 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.
- 3 Whether justice requires calling for original records from previous proceedings.
Ratio Decidendi
The court determined that before delivering judgment in the present suit, it is necessary to peruse the records of Homa Bay Senior Resident Magistrate’s Court Misc. Application No. 34 of 2009 and Kisii High Court Land Case No. 336 of 2013. This is to ascertain whether the doctrine of res judicata applies and to ensure that justice is served. The court invoked its powers under the Civil Procedure Act, the Environment and Land Court Act, and the Constitution to call for the original records and certified proceedings from the referenced cases. The court emphasized that the main concern is to do justice to the parties and that a determination on the merits can only be made after reviewing the...
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 Misc. Application No. 34 of 2009 and Kisii Environment and Land Court Land Case No. 336 of 2013, for perusal by this court...
- The matter is fixed for judgment on 31st May 2022.
Full Case Text
Judgment text and source record
24 paragraphs
Ongele v Obano (Environment & Land Case 45 of 2021) [2022] KEELC 88 (KLR) (28 April 2022) (Ruling)
Neutral citation: [2022] KEELC 88 (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
FORMERLY MIGORI ELCC NO. 778 OF 2017
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-vs- 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. G.M.A ONG’ONDOJUDGEPresent:Plaintiff, present in personDefendant-Present. No appearance for himTerence, court assistant.