[2024] KEELC 4487 (KLR)
The court found that the applicant's claim for adverse possession does not qualify as a liquidated demand, pecuniary damages, or detention of goods as contemplated under Order 10 rules 4, 5, 6 and 7 of the Civil Procedure Rules 2010. Therefore, the request for ex-parte judgment was deemed superfluous. In accordance...
Source-derived case information.
- Citation
- [2024] KEELC 4487 (KLR)
- Parties
- Applicant: Pamella Auma Opiyo; Respondent: Mary Atieno Osongo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E011 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Request for Ex Parte Judgment Prior to Formal Proof
- Outcome
- Request for ex-parte judgment declined; suit set down for hearing.
- Judges
- GMA Ongondo
- Legal Topics
- Adverse Possession, Interlocutory Judgment, Civil Procedure Rules, Formal Proof, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamella Auma Opiyo
Applicant
Mary Atieno Osongo
Respondent
Procedural Posture
Environment and Land Case / Ruling on Request for Ex Parte Judgment Prior to Formal Proof
Legal Issues
- 1 Whether the applicant is entitled to ex-parte judgment in a claim for adverse possession.
- 2 Whether the claim qualifies as a liquidated demand or for pecuniary damages under Order 10 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant's claim for adverse possession does not qualify as a liquidated demand, pecuniary damages, or detention of goods as contemplated under Order 10 rules 4, 5, 6 and 7 of the Civil Procedure Rules 2010. Therefore, the request for ex-parte judgment was deemed superfluous. In accordance with Order 10 Rule 9, the court directed that the suit be set down for hearing, ensuring compliance with constitutional and statutory requirements for fair hearing and access to justice. The respondent is to be served accordingly, and the matter will proceed to hearing on the merits.
Court Disposition
Request for ex-parte judgment declined; suit set down for hearing.
Orders
- The request for ex-parte judgment dated 26th February 2024 is noted as superfluous and declined.
- The suit is set down for hearing on 1st July 2024.
Full Case Text
Judgment text and source record
23 paragraphs
Opiyo v Osongo (Environment & Land Case E011 of 2023) [2024] KEELC 4487 (KLR) (5 June 2024) (Ruling)
Neutral citation: [2024] KEELC 4487 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case E011 of 2023
GMA Ongondo, J
June 5, 2024
Between
Pamella Auma Opiyo
Applicant
and
Mary Atieno Osongo
Respondent
Ruling
1. Mr. Nyakwamba learned counsel for the applicant, Pamela Auma Opiyo has made an application that the request for ex-parte Judgement dated 26th February 2024 be allowed pending formal proof.
2. The respondent duly served (see Ogada -versus -Mollin (2009) eKLR), entered appearance herein. However, she has not filed any statement of defence.
3. Order 10 rules 4, 5, 6 and 7 of the Civil Procedure Rules 2010 provide for liquidated demand and interlocutory judgment in a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages.
4. In the instant case, the applicant’s claim is for adverse possession in respect of land reference number Kasgunga/Kamreri/841. The same is not for a liquidated claim, pecuniary damages or detention of goods.
5. So, the request for ex-parte judgment dated 26th February 2024 is noted as superfluous herein.
6. Pursuant to Order 10 Rule 9 of the Civil Procedure Rules, 2010 aligned to Articles 48, 50(1) and 159 (2) (b) of the Constitution of Kenya 2010 and section 3 of the Environment and Land Court Act 2015 (2011), this suit is set down for hearing on 1st July 2024
7. The respondent be served accordingly.
8. It is so ordered.
Delivered and dated at Homa Bay this 5th day of June 2024. G.M.A ONG’ONDOJUDGEPRESENT.PARA 1. Mr. Nyakwamba learned counsel for the applicant.PARA 2. Mutiva and Obunga, Court Assistants.2 | PageHB ELC NO. E 011 OF 2023(OS)- RULING