[2023] KEELC 16090 (KLR)
The court determined that it could not proceed to a just decision on the appeal without the original records from the lower court. The absence of these records necessitated an order for their production. Additionally, the court emphasized the importance of proper service of process, directing the appellant's counsel...
Source-derived case information.
- Citation
- [2023] KEELC 16090 (KLR)
- Parties
- Appellant: Erick Odhiambo Ong’ondo; Respondent: Aloice Obongo Ongus
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E007 of 2022
- Procedural Posture
- Environment and Land Appeal / Interlocutory Ruling Prior to Final Judgment
- Outcome
- Interlocutory orders issued; judgment deferred pending receipt of lower court records and proper service.
- Judges
- GMA Ongondo
- Legal Topics
- Appeal Procedure, Record of Proceedings, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Odhiambo Ong’ondo
Appellant
Aloice Obongo Ongus
Respondent
Procedural Posture
Environment and Land Appeal / Interlocutory Ruling Prior to Final Judgment
Legal Issues
- 1 Whether the appeal can proceed in the absence of the original records from the lower court.
- 2 Whether proper service was effected by the appellant's counsel on the respondent's counsel.
- 3 What interim orders are necessary to facilitate a just determination of the appeal.
Ratio Decidendi
The court determined that it could not proceed to a just decision on the appeal without the original records from the lower court. The absence of these records necessitated an order for their production. Additionally, the court emphasized the importance of proper service of process, directing the appellant's counsel to serve the respondent's counsel to ensure procedural fairness. The court thus issued interim orders to call for the records and set a new date for judgment, prioritizing the need for a complete record and proper notice to all parties as prerequisites for a fair hearing.
Court Disposition
Interlocutory orders issued; judgment deferred pending receipt of lower court records and proper service.
Orders
- The Deputy Registrar is directed to call for the original records and/or three certified typed copies of proceedings and determination, if any, in Homa Bay Chief Magistrate’s Court Civil Case No 55 of 2019 with due dispatch.
- Judgment is set for March 22, 2023.
Full Case Text
Judgment text and source record
22 paragraphs
Ong’ondo v Ongus (Environment and Land Appeal E007 of 2022) [2023] KEELC 16090 (KLR) (13 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16090 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E007 of 2022
GMA Ongondo, J
March 13, 2023
Between
Erick Odhiambo Ong’ondo
Appellant
and
Aloice Obongo Ongus
Respondent
(Being an Appeal from the entire Ruling of Hon. J.S Wesonga delivered on 17th September, 2021 in Homa-Bay)
Ruling
1. The present ruling is rendered at this stage of the instant appeal before delivery of final judgment (see Blacks Law Dictionary 10th Edition at page 971 ) for reasons stated infra.
2. The appeal was precipitated by the trial court’s ruling delivered in Homa Bay Chief Magistrate’s Court Civil Case No 44 of 2020 (OS) that affected Homa Bay Chief Magistrate’s Court Civil case number 55 of 2019.
3. The original records of the said two suits are yet to be availed herein for this court to reach a just decision.
4. On February 15, 2023, the court directed the appellant’s counsel to serve the respondent’s counsel. However, the same has not been has not been affected.
5. To meet the ends of justice in this matter, I order and direct thus;a.The Deputy Registrar of this court to call for the original records and or three certified typed copies of proceedings and determination, if any, in Homa Bay Chief Magistrate’s Court Civil Case No 55 of 2019 with due dispatch.b.Judgment is set for March 22, 2023. c.The appellant’s counsel to serve the respondent’s counsel accordingly.
6. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMABAY THIS 13TH DAY OF MARCH 2023G.M.A ONG’ONDOJUDGE1. S. Nyauke, learned counsel for the appellant2. Mutiva F, Court Assistant.