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ELCPartially AllowedNotice of Motion dated 1/2/2017 (suit re L.R. No. Suna East Wasweta 1/20368(3))· [2017] KEELC 46 (KLR)

Reuben Oyamo Ondiek & another v Joash Odhiambo Orangi [2017] KEELC 46 (KLR)

High Court of Kenya
15 March 2017
338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court let land dispute parties withdraw their injunction application to try settlement talks, while freezing the property's current state until the case ends.

What this practically means

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Executive summary

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This ruling of the High Court at Migori (Ongondo J) deals with an interlocutory Notice of Motion dated 1/2/2017 by which the Plaintiffs, Reuben Oyamo Ondiek and Aggrey Omondi Ondiek, sought conservatory orders against the Defendant, Joash Odhiambo Orangi, in a land dispute over L.R. No. Suna East Wasweta 1/20368(3). The motion was anchored on Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules 2010. At the inter partes hearing, the Plaintiffs' counsel applied to withdraw the motion, stating an intention to attempt alternative dispute resolution, invoking the Supreme Court decision in Council of Governors v Senate on a party's liberty to withdraw a matter in line with Article 159(2)(c) of the Constitution. The Defendant's counsel raised no objection and also favoured ADR. The court found the prayer merited and allowed the withdrawal. Applying the proviso to Section 27 of the Civil Procedure Act and Rai v Rai on costs following the event, it made no order as to costs on the withdrawal. The court further directed that the existing status quo on the suit property be observed and maintained until the suit is heard and determined, and urged the parties to embrace alternative dispute resolution, remaining at liberty to move the court appropriately. The substantive suit remains pending.

Key legal issues

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01

Withdrawal of an interlocutory application by consent

Holding

The court allowed the Plaintiffs' oral application to withdraw their Notice of Motion seeking conservatory orders, the Respondent having raised no objection

Reasoning

The Plaintiffs' counsel applied to withdraw the motion, indicating an intention to pursue alternative dispute resolution. The Defendant's counsel raised no objection and also favoured ADR. The court found the prayer merited and allowed it, guided by the constitutional principle under Article 159(2)(c) that encourages alternative dispute resolution, and the authority in Council of Governors v Senate on a party's liberty to withdraw a matter.

p. 2
02

Costs upon withdrawal

Holding

No order as to costs was made, costs being discretionary and following the event under the proviso to Section 27 of the Civil Procedure Act

Reasoning

The court invoked the proviso to Section 27 of the Civil Procedure Act and the Rai v Rai authority on costs following the event. Since the application was withdrawn and the Respondent did not oppose the withdrawal, the court exercised its discretion to make no order as to costs rather than awarding costs to the Respondent.

p. 2
03

Preservation of the status quo pending trial

Holding

The court directed that the existing status quo on the suit property be maintained until the suit is heard and determined

Reasoning

Although the motion seeking conservatory orders was withdrawn, the court proprio motu directed that the existing status quo on L.R. No. Suna East Wasweta 1/20368(3) be observed and maintained until the suit is heard and determined, thereby preserving the position of the parties pending full trial of the substantive dispute.

p. 2

Legal principles established

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  • A party has the liberty to withdraw a matter before the court, consistent with the constitutional encouragement of alternative dispute resolution under Article 159(2)(c) of the Constitution of Kenya 2010
  • Costs are within the discretion of the court and follow the event, per the proviso to Section 27 of the Civil Procedure Act

Court orders

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  1. 1.Leave granted to the Plaintiffs to withdraw the Notice of Motion dated 1/2/2017
  2. 2.No order as to costs on the withdrawal of the Notice of Motion
  3. 3.Existing status quo on L.R. No. Suna East Wasweta 1/20368(3) to be observed and maintained until the suit is heard and determined
  4. 4.Parties urged to embrace Alternative Dispute Resolution and at liberty to move the court appropriately

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActProviso to Section 27
  • Civil Procedure Rules 2010Order 40
  • Civil Procedure Rules 2010Order 51
  • Constitution of Kenya 2010Article 159(2)(c)

Cases cited (2)

  • Councils of Governors Vs. Senate & Anor
    (2014) KLR
  • Rai -Vs. Rai
    (2014) KLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules 2010

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, "Reuben Oyamo Ondiek & another v Joash Odhiambo Orangi [2017] KEELC 46 (KLR)", Case Analysis (2017). Notice of Motion dated 1/2/2017 (suit re L.R. No. Suna East Wasweta 1/20368(3)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/46/eng@2017-03-15

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