[2021] KEELC 33 (KLR)
The court found that the applicants' Notice of Motion dated 1st December 2021 was filed without compliance with the mandatory prescribed procedure under Order 9 Rule 9 of the Civil Procedure Rules 2010. The court further held that the application did not adhere to the principles of transparency and accountability as...
Source-derived case information.
- Citation
- [2021] KEELC 33 (KLR)
- Parties
- Applicant: Peter Okoth Gumo and 14 others; Respondent: Jokodhul Group alias Jokodhul Ranching Group; Respondent: Jokaete Group alias Jokaete Ranching Group; Respondent: Julius Ouma Jwan
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution
- Outcome
- Notice of Motion dated 1st December 2021 struck out as incompetent with costs to the respondents.
- Legal Topics
- Stay of Execution, Striking Out of Application, Non Compliance With Procedure, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Okoth Gumo and 14 others
Applicant
Jokodhul Group alias Jokodhul Ranching Group
Respondent
Jokaete Group alias Jokaete Ranching Group
Respondent
Julius Ouma Jwan
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicants' Notice of Motion dated 1st December 2021 should be struck out for non-compliance with mandatory procedural requirements.
- 2 Whether the application is curable under Article 159(2)(d) of the Constitution of Kenya, 2010.
- 3 Whether costs should be awarded to the respondents.
Ratio Decidendi
The court found that the applicants' Notice of Motion dated 1st December 2021 was filed without compliance with the mandatory prescribed procedure under Order 9 Rule 9 of the Civil Procedure Rules 2010. The court further held that the application did not adhere to the principles of transparency and accountability as required by Article 10(2) of the Constitution of Kenya, 2010. The court determined that the procedural defect was not curable under Article 159(2)(d) of the Constitution, which allows for substantive justice despite procedural technicalities. Consequently, the court struck out the Notice of Motion as incompetent and awarded costs to the respondents.
Court Disposition
Notice of Motion dated 1st December 2021 struck out as incompetent with costs to the respondents.
Orders
- The Notice of Motion dated 1st December 2021 is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT HOM BAY
ELC OS CASE NO 31 OF 2021
PETER OKOTH GUMO AND 14 OTHERS .........................PLAINTIFFS/APPLICANTS
VERSUS
JOKODHUL GROUP ALIAS JOKODHUL RANCHING GROUP ......1ST RESPONDENT
JOKAETE GROUP ALIAS JOKAETE RANCHING GROUP..............2ND RESPONDENT
JULIUS OUMA JWAN ...............................................................................3RD RESPONDENT
RULING
1. By a Notice of Motion dated 1st December 2021 and duly filed herein on 2nd December 2021, the applicants, Peter Okoth Gumo and 14 others through M/s S.O Odingo and company Advocates are seeking stay of execution of this court’s ruling rendered on 27th October 2021, among other orders.
2. By the said ruling, the applicant’s originating summons Ex-parte dated 14/12/2020 and filed in court and on 15th December 2020 together with Notice of Motion of even date, were dismissed with costs to the Respondents.
3. The Notice of Motion as pointed out at Paragraph 1 herein above is for inter-partes hearing today. The applicants’ counsel who is aware of the same, is absent without any reason or at all.
4. Mr. G.S Okoth, learned Counsel for the respondents has informed the Court that the applicants’ counsel who is aware of this date, filed no notice of change or appointment of advocate as prescribed. Counsel has prayed that the Notice of Motion be struck out with costs to the Respondents.
5. I have duly considered this matter in its entirely. The respondent’s prayer is merited.
6. Indeed, the applicants’ Counsel filed the Notice Motion dated 1st December 2021 without compliance with the mandatory prescribed procedure; See Order 9 Rule 9 of the Civil Procedure Rules 2010.
7. Moreover, the Notice of Motion is not in consonant with transparency and accountability principles as stipulated under Article 10 (2) of the Constitution of Kenya 2010.
8. So, the Notice of Motion is not curable under Article 159 (2) (d) of the Constitution of Kenya, 2010.
9. Accordingly, the Notice of Motion dated 1st December 2021 is incompetent. I proceed to strike it out with costs to the respondents.
DATED AND DELIVERED AT HOMA BAY THIS 15TH DECEMBER, 2021
G.M.A ONG’ONDO
JUDGE
Present;
a) Mr. G.S. Okoth learned counsel for the Respondent
b) 1st applicant , Present
c) Okello, court assistant
G.M.A ONG’ONDO
JUDGE