[2021] KEELC 955 (KLR)
The court found that the petitioner's request to withdraw the petition against the 3rd and 4th interested parties was justified, particularly in light of the 1st respondent's admission and the absence of objection from the respondents. The withdrawal would not prejudice the interests of justice or the remaining...
Source-derived case information.
- Citation
- [2021] KEELC 955 (KLR)
- Parties
- Applicant: Peter Odiwuor Ngoge; Respondent: Dickson Arogo Awendo; Respondent: Yukabeth Midigo Owiyo; Respondent: The Land Control Board through the District Officer (Kasipul Division); Respondent: The District Land Registrar Rachuonyo South District; Respondent: The Area Chief Mr. Shellemiah Mbaka; Respondent: The Former Area Chief Mr. Lawrence Ochich Oliech; Respondent: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- ? 9 of 2021
- Procedural Posture
- Constitutional Petition / Interlocutory Ruling on Withdrawal of Petition Against Certain Parties and Directions for Hearing
- Outcome
- Petition against the 3rd and 4th interested parties withdrawn; petition to proceed against remaining parties by written submissions.
- Legal Topics
- Fraudulent Land Transfer, Succession Disputes, Land Control Board Procedure, Unlawful Alienation, Withdrawal of Parties, Written Submissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odiwuor Ngoge
Applicant
Dickson Arogo Awendo
Respondent
Yukabeth Midigo Owiyo
Respondent
The Land Control Board through the District Officer (Kasipul Division)
Respondent
The District Land Registrar Rachuonyo South District
Respondent
The Area Chief Mr. Shellemiah Mbaka
Respondent
The Former Area Chief Mr. Lawrence Ochich Oliech
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Ruling on Withdrawal of Petition Against Certain Parties and Directions for Hearing
Legal Issues
- 1 Whether the petition against the 3rd and 4th interested parties should be withdrawn as requested by the petitioner.
- 2 Whether the remaining petition should proceed against the other respondents and interested parties.
- 3 Whether the process of transfer and subdivision of the suit land was fraudulent, unconstitutional, and contrary to statutory provisions.
Ratio Decidendi
The court found that the petitioner's request to withdraw the petition against the 3rd and 4th interested parties was justified, particularly in light of the 1st respondent's admission and the absence of objection from the respondents. The withdrawal would not prejudice the interests of justice or the remaining parties. The court therefore marked the petition as withdrawn against the 3rd and 4th interested parties with no order as to costs. The court further directed that the petition as against the remaining respondents and interested parties proceed by way of written submissions, setting timelines for the filing and service of submissions by both the petitioner and the respondents. The...
Court Disposition
Petition against the 3rd and 4th interested parties withdrawn; petition to proceed against remaining parties by written submissions.
Orders
- Petition against the 3rd and 4th interested parties is marked as withdrawn with no order as to costs.
- Petition against the remaining respondents and interested parties to proceed by way of written submissions.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT HOMABAY
ELC PETITION NO. 9 OF 2021
(FORMERLY MIGORI ELC PETITION NO. 10 OF 2019)
PETER ODIWUOR NGOGE .............................................................................................................................................PETITIONER
VERSUS
DICKSON AROGO AWENDO ................................................................................................................................. 1ST RESPONDENT
YUKABETH MIDIGO OWIYO.................................................................................................................................2ND RESPONDENT
THE LAND CONTROL BOARD THROUGH THE DISTRICT OFFICER (KASIPUL DIVISION ...1ST INTERESTED PARTY
THE DISTRICT LAND REGISTRAR RACHUONYO SOUTH DISTRICT...........................................2ND INTERESTED PARTY
THE AREA CHIEF MR. SHELLEMIAH MBAKA...................................................................................3RD INTERESTED PARTY
THE FORMER AREA CHIEF MR. LAWRENCE OCHICH ….OLIECH ............................................4TH INTERESTED PARTY
THE HONOURABLE ATTORNEY GENERAL ........................................................................................5TH INTERESTED PARTY
RULING
1. This ruling is in respect of the Petitioner’s claim against the 3rd and 4th interested parties herein. He has prayed that:
“ in view of the 1st Respondent’s admission as contained in his replying affidavit sworn on 5/9/2019 filed on even date, I do not see the value of maintaining this case against the other parties who were witnesses. I therefore, withdraw this petition against the 3rd and 4th interested parties herein”
2. By a petition dated 26th May, 2017, amended on 19th September, 2017 and further amended on 17th September, 2019 and filed on 19th September 2019, the Petitioner, Peter Odiwuor Ngoge is seeking against the respondents and interested parties the orders, interalia;
“ A declaration that the highly secrete collusive and fraudulent transfer of the parcel of land known as West Kasupul/Kotieno-Kochich/359 into the 1st respondent herein in or about the year 1990 and its subsequent subdivisions and transfer thereof to the 2nd respondent herein as a gift and further alienation to other unknown third parties were null and void, unconstitutional, fraudulent and unlawful and contrary to section 31 of the Law of Succession Act and sections 6 and 8 of the land Control Act”.
3. By a notice dated, 19th October, 2021, the Deputy Registrar of this Court duly notified the parties of this date.
4. Mr. Migele holding brief for Mr. Achillah learned counsel for the 1st respondent has no issue with the Petitioner’s prayer as captured in paragraph 1 hereinabove.
5. Having heard the Petitioner and Mr. Migele, learned counsel for 1st respondent alongside the interest of justice, I find the Petitioner’s prayer sound. I proceed to order that the Petition against the 3rd and 4th interested parties be and is hereby marked as withdrawn with no orders as to costs.
6. Further, it is hereby ordered that the instant petition against the respondents and other interested parties, be heard by way of written submissions.
7. The Petitioner to file and serve his submissions within the next 14 days from this date.
8. The respondents and the other interested parties to file and serve their submissions within 14 days from the date pointed out at paragraph seven (7) hereinabove.
9. The Petition be mentioned on 8/12/2021, to confirm compliance and for directions.
10. The other respondents and other interested parties be served forthwith.
11. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 10TH DAY OF NOVEMBER, 2021
G.M.A ONG’ONDO
JUDGE
In the presence of:
The petitioner in person
Mr. Migele holding brief for Mr. Achillah, Learned Counsel for the 1st Respondent