[2023] KEELC 20252 (KLR)
The court determined that, since judgment had already been delivered and an appeal is pending before the Court of Appeal (Kisumu Civil Appeal No. E030/2022), it is functus officio and lacks jurisdiction to entertain the objection or any further proceedings in the matter. The objector's application to withdraw the...
Source-derived case information.
- Citation
- [2023] KEELC 20252 (KLR)
- Parties
- Plaintiff: Ishmail Owano Owaya; Defendant: Lonah Bol Okuro; Defendant: Cliff Oriwo Okuro; Objector: Thomas Ochieng Ojanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Withdrawal of Objection
- Outcome
- Objection withdrawn; court functus officio; costs to abide outcome of appeal.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Objection, Functus Officio, Jurisdiction, Pending Appeal, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ishmail Owano Owaya
Plaintiff
Lonah Bol Okuro
Defendant
Cliff Oriwo Okuro
Defendant
Thomas Ochieng Ojanga
Objector
Procedural Posture
Environment and Land Case / Ruling on Withdrawal of Objection
Legal Issues
- 1 Whether the court has jurisdiction to entertain the objection after an appeal has been filed.
- 2 Whether the objector's application to withdraw the notice of objection should be allowed.
- 3 Whether the court is functus officio in the circumstances.
Ratio Decidendi
The court determined that, since judgment had already been delivered and an appeal is pending before the Court of Appeal (Kisumu Civil Appeal No. E030/2022), it is functus officio and lacks jurisdiction to entertain the objection or any further proceedings in the matter. The objector's application to withdraw the notice of objection is therefore merited and allowed. Costs are to abide the outcome of the appeal.
Court Disposition
Objection withdrawn; court functus officio; costs to abide outcome of appeal.
Orders
- The objector's application for withdrawal of the notice of objection is allowed.
- Costs to abide the outcome of the appeal at the Court of Appeal.
Full Case Text
Judgment text and source record
31 paragraphs
Owaya v Okuro & another; Ojanga (Objector) (Environment & Land Case 17 of 2021) [2023] KEELC 20252 (KLR) (27 September 2023) (Ruling)
Neutral citation: [2023] KEELC 20252 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case 17 of 2021
GMA Ongondo, J
September 27, 2023
Between
Ishmail Owano Owaya
Plaintiff
and
Lonah Bol Okuro
1st Defendant
Cliff Oriwo Okuro
2nd Defendant
and
Thomas Ochieng Ojanga
Objector
Ruling
1. On May 30, 2023, the objector, Thomas Ochieng Okuro who appears in person lodged a notice of objection datedMay 29, 2023on the grounds thus:a.The objector who is the registered owner of parcel number Kanyada/Kanyabala/3647 which was also in contention in said matter was not a party to the suit that was decided in favour of the plaintiff.b.The suit was decided in the absence of the objector and therefore this honourable court to make an order for his inclusion in the suit for due process to prevail.c.The judgement delivered by this honourable court therefore is improper. The rights ofthe objector to be subjected to due process must be safeguarded by this honourable court.
2. Today, the applicant/objector has sought to withdraw the said objection with no orders as to costs on the grounds that there is an appeal No E030 of 2022 pending at Kisumu Court of Appeal which has been brought to my attention.
3. Mr O. H Bunde learned counsel for the plaintiff/respondent told the court that he has no objection to the application subject to costs.
4. Notably, judgment herein was rendered on March 1, 2022. Stay of execution of the said judgment and decree was granted by this court’s ruling delivered on October 18, 2023.
5. There is no dispute that there is existence of civil appeal number E030/2022 at the Court of Appeal, Kisumu.
6. Clearly, it would not be right for this matter to be handled by this court since the same is pending before the Court of Appeal; see Judicial Commission of Inquiry, into Goldenberg Affair and 3 others v Kilach (2003) KLR 249 at 265/266.
7. I, therefore, find that this court is functus officio as defined in Black’s Law Dictionary 10th Edition.
8. Further, this court is devoid of jurisdiction over this matter.
9. In the result, the objector’s application for withdrawal of the notice of objection is merited. The same is hereby allowed accordingly.
10. Costs to abide the outcome of the appeal at the Court of Appeal.
11. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 27TH DAY OF SEPTEMBER, 2023. G.M.A ONG’ONDOJUDGE