[2017] KEELC 46 (KLR)
The court found that the applicant's request to withdraw the Notice of Motion application was merited, especially as both parties agreed to pursue alternative dispute resolution. The court exercised its discretion not to award costs, in line with the principle that costs follow the event but may be withheld where...
Source-derived case information.
- Citation
- [2017] KEELC 46 (KLR)
- Parties
- Applicant: Reuben Oyamo Ondiek; Applicant: Aggrey Omondi Ondiek; Respondent: Joash Odhiambo Orangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 70 of 2017
- Procedural Posture
- Notice of Motion / Withdrawal of Application
- Outcome
- Notice of Motion application withdrawn with no order as to costs; status quo on the suit property to be maintained.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Application, Conservatory Orders, Alternative Dispute Resolution, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Reuben Oyamo Ondiek
Applicant
Aggrey Omondi Ondiek
Applicant
Joash Odhiambo Orangi
Respondent
Procedural Posture
Notice of Motion / Withdrawal of Application
Legal Issues
- 1 Whether the applicant is entitled to withdraw the Notice of Motion application without an order as to costs.
- 2 Whether the status quo on the suit property should be maintained pending hearing and determination of the suit.
- 3 Whether parties should be encouraged to pursue alternative dispute resolution.
Ratio Decidendi
The court found that the applicant's request to withdraw the Notice of Motion application was merited, especially as both parties agreed to pursue alternative dispute resolution. The court exercised its discretion not to award costs, in line with the principle that costs follow the event but may be withheld where appropriate. The court further directed that the status quo on the suit property be maintained until the substantive suit is heard and determined, to preserve the subject matter and prevent prejudice to either party. The court encouraged the parties to embrace alternative dispute resolution and left them at liberty to move the court as necessary.
Court Disposition
Notice of Motion application withdrawn with no order as to costs; status quo on the suit property to be maintained.
Orders
- The Notice of Motion application dated 1/2/2017 is withdrawn with no order as to costs.
- The existing status quo on L.R. NO. SUNA EAST WASWETA 1/20368(3) shall be observed and maintained until the suit is heard and determined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN The ENVIRONMENT AND LAND COURT AT MIGORI
ELCC APPEAL NO. 70 OF 2017
REUBEN OYAMO ONDIEK
AGGREY OMONDI ONDIEK.....................PLAINTIFF/APPLICANT
VERSUS
JOASH ODHIAMBO ORANGI.........DEFENDANT/RESPONDENT
RULING
1. A Notice of Motion dated 1 /2/2017 brought under Section 1A,1B & 3A Civil Procedure Act together with Order 51 and Order 40 of the Civil Procedure Rules 2010 seeks conservatory orders against the Defendant/Respondent JOASH ODHIAMBO ORANGI by the Plaintiffs, REUBEN OYAMO ONDIEK AND AGGREY OMONDI ONDIEK. It is for inter parties hearing today.
2. The Plaintiff/Applicant is represented by Mwita Kerario counsel instructed by Kerario Marwa and Company Advocates. The Defendant/Respondent counsel is represented by Sam Onyango and Company Advocates.
3. The Plaintiff/Applicants counsel has applied to have the Notice of Motion application withdrawn with no orders as to costs. The application is consistent with the holding in Councils of Governors Vs. Senate & Anor (2014) KLR -SCK on liberty of a party to withdraw a matter in line with ARTICLE 159(2) (C) CONSTITUTIONOF KENYA 2010. His counsel has indicated that they will give a shot at Alternative Dispute Resolution mechanism in this matter.
4. The Defendant/Respondents counsel has no objection to the application. He is also for Alternative Dispute Resolution regarding the dispute.
5. I consider the prayers by the Plaintiff/Applicants counsel vis a vis the response by the Defendant/Respondent counsel. I find the prayer merited and I allow it.
6. Costs are within the discretion of the court and follow the event see Proviso to Section 27 Civil Procedure Act Cap 21 Laws of Kenya and Rai -Vs. Rai (2014) KLR -SCK. I make no order to costs in the application of withdrawal of the Notice of motion.
7. I direct that existing status quo on L.R. NO. SUNA EAST WASWETA 1/20368(3) be observed and maintained until the suit is heard and determined.
8. The parties are urged to embrace Alternative Dispute Resolution and will be at liberty to move the court appropriately.
GEORGE M. A. ONGONDO
JUDGE
DELIVERED, SIGNED and DATED in open court at MIGORI this 15TH day of March, 2017.
in the presence of :-
Mr. Mwita Kerario counsel for the Plaintiff/Applicant
Mr. Sam Onyango counsel for the Defendant/Respondent