[2024] KEELC 4323 (KLR)
The court found that the application to set aside the dismissal order and reinstate the appeal was meritorious. The applicant had provided sufficient explanation for the non-attendance, namely misdiarization by counsel and the passing on of the respondents, which required substitution. The application was unopposed,...
Source-derived case information.
- Citation
- [2024] KEELC 4323 (KLR)
- Parties
- Appellant: Elisha Ochieng Owuonda; Respondent: Philemon Odero Odongo; Respondent: Erick Ochieng Odero
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 3 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; orders of 19th March 2024 dismissing the appeal set aside; appeal reinstated.
- Judges
- GMA Ongondo
- Legal Topics
- Setting Aside Orders, Reinstatement of Appeal, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elisha Ochieng Owuonda
Appellant
Philemon Odero Odongo
Respondent
Erick Ochieng Odero
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the appellant has demonstrated sufficient cause to set aside the dismissal order and reinstate the appeal.
- 2 Whether the application is unopposed and the effect of non-response by the respondents.
Ratio Decidendi
The court found that the application to set aside the dismissal order and reinstate the appeal was meritorious. The applicant had provided sufficient explanation for the non-attendance, namely misdiarization by counsel and the passing on of the respondents, which required substitution. The application was unopposed, as the respondents, though duly served, did not file any response. The court exercised its discretion to allow the application in the interests of justice, relying on the grounds stated, the supporting affidavit, and the absence of opposition.
Court Disposition
Application allowed; orders of 19th March 2024 dismissing the appeal set aside; appeal reinstated.
Orders
- The orders issued on 19th March 2024 dismissing the appeal are set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
29 paragraphs
Owuonda v Odongo & another (Environment and Land Appeal 3 of 2021) [2024] KEELC 4323 (KLR) (29 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4323 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 3 of 2021
GMA Ongondo, J
May 29, 2024
Between
Elisha Ochieng Owuonda
Appellant
and
Philemon Odero Odongo
1st Respondent
Erick Ochieng Odero
2nd Respondent
(Being an appeal against the judgement of SRM Hon. Nichodemus N. Moseti delivered on the 18th day of August, 2021 in the Environment and Land Case No. 11 of 2019 at SRM’s Court at Mbita)
Ruling
1. In a Notice of Motion dated 21st March 2024 under, inter alia, sections 1A, 1B and 3A of the Civil Procedure Act chapter 21 Laws of Kenya, the appellant/applicant, Elisha Ocheing Awuonda through Obach and partners Advocates is seeking the orders thus:a.That this Honourable court be pleaded to set aside the orders issued on 19th March 2024 dismissing this appeal and reinstate the same.b.Costs of this application be in the cause.
2. The basis of the application are grounds, to set out on it’s face and the supporting affidavit sworn on even date together with a copy of diary and a copy of citation annexed thereto. Briefly, the applicant’s lamentation is that his counsel misdiarized the matter and that the respondents passed on hence, being substituted herein.
3. The application was duly served as disclosed in the affidavit of service sworn on 22nd March 2024 by Obach Humprey, learned counsel for the applicant.
4. There is no response to the application.
5. So, does the applicant deserve the orders sought in the application?
6. The respondents’ counsel was duly served and opted not to respond to the application; see also Ogada -versus Mollin (2009) KLR 620.
7. Clearly, there is no opposition to the application. The same is steadfast.
8. Ms B. Ochieng learned counsel for the applicant has implored the court to grant prayers (a) and (b) in the application.
9. In the premises, I find that the application is reinforced by the grounds of it’s face, the supporting affidavit and the accompanying documents. The application is meritorious.
10. The upshot is that the application is hereby allowed in terms of prayers as stated in paragraph 1 (a) and (b) hereinabove.
11. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 29TH DAY OF MAY 2024. G.M.A ONG’ONDOJUDGEPresent:1. Ms. Ochieng, learned counsel for the appellant/applicant.2. Court Assistant, Mutiva.