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ELCDismissedELC Case of 2009 (Migori)· [2017] KEELC 21 (KLR)

Paul Otieno Odwar & 3 others v Meshack Dawa & 3 other [2017] KEELC 21 (KLR)

Environment and Land Court
2 June 2017
GOG. M. A. Ongondo
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to dismiss an eight-year-old land case, ruling that limited administration grants gave the plaintiffs standing and that every party deserves a hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (Ongondo J) determined two preliminary objections and two Notice of Motion applications by the 1st and 2nd Defendants seeking dismissal of the plaintiffs' suit for want of locus standi and want of prosecution. The defendants argued that the plaint filed in 2009 was incompetent because the plaintiff lacked letters of administration of the estate of Caleb Odwar (Deceased), and that substitution was required within 12 months. The plaintiffs countered that letters of administration ad litem had been obtained under Section 54 of the Law of Succession Act, that earlier applications had been dismissed or withdrawn, and that a substitution application was pending. The court framed two issues: locus standi and want of prosecution. On locus standi, it was guided by the limited grants ad litem in the Migori succession causes and Order 4 Rule 4 on representative suits, finding the suit competent. On want of prosecution, the court found the suit still active with steps taken since 2009, held Order 17 Rule 2 inapplicable, and applied Article 50(1) on the right to a fair hearing and the principle that denying a hearing should be the last resort (Sebei District Administration v Gasyali). Invoking Article 159(2) on justice without undue regard to technicality, the court dismissed the preliminary objections and motions, ordered costs in the cause, and granted leave to amend the plaint within 14 days with mention for directions on 28/6/2017.

Key legal issues

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01

Whether the plaintiffs had locus standi to institute the suit without full letters of administration

Holding

Plaintiffs had locus standi; limited grants ad litem under Section 54 of the Law of Succession Act and representative suits under Order 4 Rule 4 sufficed

Reasoning

Counsel for the plaintiffs demonstrated that Paul Odwar obtained letters of administration ad litem and the proposed plaintiffs Felix Ogutu Otieno and Susan Owuondo obtained a limited grant ad litem in Migori High Court Succession Cause No. 8 of 2012 pursuant to Section 54 of the Law of Succession Act. The court was guided by these grants and Order 4 Rule 4 CPR on representative suits, and held the suit competent. Article 159(2) on justice without undue regard to technicalities reinforced this finding.

p. 2
02

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 and Order 40 Rules 1 and 2

Holding

Application for dismissal failed; Order 17 not applicable where steps have been taken and the suit remains active; right to fair hearing under Article 50(1) prevails

Reasoning

The court examined the chronology: the Notice of Motion dated 4/7/2011 came up for hearing on 21/9/2011 and was adjourned to 25/10/11 and has never been heard to date; the application of 20/12/2016 did not comply with Order 17 Rule 2 since one year had not elapsed. The suit was found to be still active with steps taken by parties since 2009. Denying a hearing should be the last resort (Sebei District Administration v Gasyali), and Article 50(1) guarantees a fair hearing.

p. 3

Legal principles established

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  • A preliminary objection must be on a clear point of law based on undisputed facts
  • Denying a subject a hearing should be the last resort of a court

Court orders

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  1. 1.Preliminary objections and Notice of Motion applications dismissed
  2. 2.Costs of the Preliminary Objections and Notice of Motion applications to be in the cause
  3. 3.Plaintiff counsel granted leave to amend the plaint, file and serve the defendants' counsel within 14 days
  4. 4.Mention on 28/6/2017 for directions

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 15(2), Order 14A Rule 10, Order 17 Rules 2(1),(2),(3), Order 40 Rules 1 and 2, Order 4 Rule 4
  • Law of Succession ActSection 54
  • Environment and Land Court ActSections 3, 13, 18 and 19
  • Constitution of Kenya, 2010Articles 50(1), 159(2)(a) and (b)
  • Practice Directions on Proceedings in the Environment and Land CourtRules 1 and 2

Cases cited (6)

  • Republic vs Public Procurement Administrative Review Board And Anor exparte Selex Sistemi Integrati
    (2008) KLR 728
  • Mukisa Biscuits and Company Co. Ltd Vs. West End Distributors
    (1969) EA 606
  • Muchanga Investment Ltd Vs. Safaris Unlimited (Africa) Ltd and 2 others
    (2009) KLR 229
  • Attahiroi Vs. Bagudo
    1998 3 NWLL at 545
  • PIM Vs. Morton
    (1976-80) LKR 963
  • Sebei District Administration Vs. Gasyali and others
    (1968) EA 300-302
Jurisdiction invoked
Environment and Land Court Act (Sections 3, 13, 18 and 19) and Civil Procedure Act Cap 21

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Otieno Odwar & 3 others v Meshack Dawa & 3 other [2017] KEELC 21 (KLR)", Case Analysis (2017). ELC Case of 2009 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/21/eng@2017-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.