[2023] KEELC 16199 (KLR)
The court held that a preliminary objection, particularly one raising a point of law such as jurisdiction, must be heard and determined before the court can consider the merits of any substantive application. This approach is grounded in established legal authority, including the Mukisa Biscuit case and the Lillian...
Source-derived case information.
- Citation
- [2023] KEELC 16199 (KLR)
- Parties
- Appellant: Samuel Odoyo Opany; Respondent: Ronald Ochieng Odhiambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 42 of 2021
- Procedural Posture
- Environment and Land Appeal / Interlocutory Application and Preliminary Objection Prior to Hearing on Merits
- Outcome
- Preliminary objection to be heard and determined before the substantive application; application for review deferred.
- Judges
- GMA Ongondo
- Legal Topics
- Preliminary Objection, Review of Judgment, Jurisdiction, Land Dispute Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Odoyo Opany
Appellant
Ronald Ochieng Odhiambo
Respondent
Procedural Posture
Environment and Land Appeal / Interlocutory Application and Preliminary Objection Prior to Hearing on Merits
Legal Issues
- 1 Whether the preliminary objection should be heard and determined before the substantive application for review of judgment.
- 2 Whether the preliminary objection raises a pure point of law that may dispose of the suit.
Ratio Decidendi
The court held that a preliminary objection, particularly one raising a point of law such as jurisdiction, must be heard and determined before the court can consider the merits of any substantive application. This approach is grounded in established legal authority, including the Mukisa Biscuit case and the Lillian S case, which require that jurisdictional and other pure points of law be addressed as a threshold issue. The court further relied on Article 159(2)(b) of the Constitution, emphasizing the need to avoid delay in the administration of justice. Accordingly, the court directed that the preliminary objection be fixed for directions and hearing before any consideration of the...
Court Disposition
Preliminary objection to be heard and determined before the substantive application; application for review deferred.
Orders
- The preliminary objection is fixed for directions on May 22, 2023.
- No orders on the substantive application until the preliminary objection is determined.
Full Case Text
Judgment text and source record
27 paragraphs
Opany v Odhiambo (Environment and Land Appeal 42 of 2021) [2023] KEELC 16199 (KLR) (8 March 2023) (Judgment)
Neutral citation: [2023] KEELC 16199 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 42 of 2021
GMA Ongondo, J
March 8, 2023
(FORMERLY MIGORI ELC APPEAL NO.12 OF 2020)
Between
Samuel Odoyo Opany
Appellant
and
Ronald Ochieng Odhiambo
Respondent
Judgment
1. On July 18, 2022, the appellant in person filed an application by way of a notice of motion of even date seeking, inter alia, to review, vary and or set aside this court’s judgment delivered on June 2, 2022.
2. The respondent through the firm of Tom Mboya and Company Advocates, opposed the application by way of grounds of opposition dated August 17, 2022 on October 11, 2022.
3. Both parties have filed and exchanged their respective submissions in respect of the application further to this court’s directions of October 17, 2010.
4. Interestingly, on November 9, 2022, the respondent’s counsel, Brian Mboya and Company Advocates lodged a notice of preliminary objection dated October 3, 2022 to the application.
5. So, this court is confronted with the application and the preliminary objection for hearing and determination. In that regard, which one should take priority over the other?
6. Article 159 (2) (b) of the Constitution of Kenya, 2010 provides;“Justice shall not be delayed.”
7. In the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 at page 700 paragraph D-F, the Court of Appeal noted-“.....A preliminary objection consists of a point of law which has been pleaded or......may dispose of the suit....”
8. It is trite law that a point of law inclusive of jurisdiction is to be dealt with as the first order of business before an inquiry into merits of a cause; seeKakuta Maimai Hamisi v Peris Pesi Tobiko and 2 others (2013) KLR which applied the decision in Owners of Motor Vessel Lillian “S” v Caltex Kenya Ltd (1989) KLR 1.
9. On that basis, the hearing of the preliminary objection should take precedence over the application.
10. Thus, I order and direct that the preliminary objection is fixed for directions on May 22, 2023.
11. Orders accordingly.
DATED AND DELIVERED AT HOMA BAY THIS 8TH DAY OF MARCH 2023. G .M A ONG’ONDOJUDGEPRESENT1. Appellant in person2. Mutiva F, Court Assistant.