[2021] KEELC 855 (KLR)
The court found that the application was not anchored on any substantive suit, such as a plaint or petition, as required by law. This omission deprived the court of jurisdiction to entertain the application. Additionally, the applicants failed to serve the 1st to 5th Respondents, and there was no affidavit of...
Source-derived case information.
- Citation
- [2021] KEELC 855 (KLR)
- Parties
- Applicant: Paul Odhiambo Jaramba; Applicant: Daniel Nyerere Kochele; Applicant: Marion Atieno Ojiem; Respondent: Kenya Informal Settlements Improvement Project (KISSIP); Respondent: County Government of Kisumu; Respondent: Commissioner for Lands; Respondent: Director of Surveys of Kenya; Respondent: Hon. Attorney General; Respondent: Ethics and Anti-Corruption Commission
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Service of Process, Originating Proceedings, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Odhiambo Jaramba
Applicant
Daniel Nyerere Kochele
Applicant
Marion Atieno Ojiem
Applicant
Kenya Informal Settlements Improvement Project (KISSIP)
Respondent
County Government of Kisumu
Respondent
Commissioner for Lands
Respondent
Director of Surveys of Kenya
Respondent
Hon. Attorney General
Respondent
Ethics and Anti-Corruption Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the application is properly before the court in the absence of a plaint or petition.
- 2 Whether failure to serve the 1st to 5th Respondents invalidates the application.
- 3 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the application was not anchored on any substantive suit, such as a plaint or petition, as required by law. This omission deprived the court of jurisdiction to entertain the application. Additionally, the applicants failed to serve the 1st to 5th Respondents, and there was no affidavit of service on record. The court held that these procedural lapses constituted an abuse of the court process. Consequently, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application dated 12/3/2020 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC. CASE NO. 38 OF 2020
PAUL ODHIAMBO JARAMBA........................................................1ST APPLICANT
DANIEL NYERERE KOCHELE.....................................................2ND APPLICANT
MARION ATIENO OJIEM..............................................................3RD APPLICANT
VERSUS
KENYA INFORMAL SETTLEMENTS
IMPROVEMENT PROJECT (KISSIP)......................................1ST RESPONDENT
COUNTY GOVERNMENT OF KISUMU..................................2ND RESPONDENT
COMMISSIONER FOR LANDS................................................3RD RESPONDENT
DIRECTOR OF SURVEYS OF KENYA...................................4TH RESPONDENT
HON. ATTORNEY GENERAL.................................................5TH RESPONDENT
ETHICS AND ANTI-CORRUPTION
COMMISSION...........................................................................6TH RESPONDENT
RULING
On the 4/6/2020, this court made an order that the application dated 12/3/2020 be served within 3 days and that the Respondents were to file and serve a reply within 7 days of service. The Applicants were to file a supplementary affidavit with submissions within 7 days of service. The Respondents were file submissions within 7 days of service. The ruling was reserved to be delivered on notice. It appears that the directions were not complied with. There is no affidavit of service on record and are no replying affidavits for the 1st – 5th Respondents, save the 6th Respondent. I have considered the application and do find that it lacks merit as it is not premised on any suit known in law. There is neither a plaint nor a petition lodged with the application. Moreover, failure to serve to 1st to 5th Respondents is an abuse of the process of court. The application dated 12/3/2020 is dismissed with costs.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19th DAY OF NOVEMBER, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.
ANTONY OMBWAYO
JUDGE