Mellitus Oluoch Odero v Daudi Otieno Othuon & 6 others [2017] KEELC 3562 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to overturn a land judgment, confirming that part-heard cases stayed validly with the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court Judge over a part-heard land case after establishment of the Environment and Land Court
The High Court Judge had jurisdiction because the suit was filed in 1996 and was part-heard when the ELC was operationalized in October 2012.
Article 162(2)(b) created the ELC, established by the Environment and Land Court Act which commenced 30th August 2011, with courts operationalized in October 2012. Article 22 of the Sixth Schedule and Section 30 of the Act preserve pending judicial proceedings, and the Chief Justice's practice directions (Gazette Notice No.5178 of 28th July 2014, Rules 3-5) required pending judgment, rulings and part-heard land matters to be completed by the same High Court. The hearing on 9th May 2012 therefore fell lawfully before the High Court.
Whether the Defendants were notified of the hearing and judgment dates
They were; the court properly proceeded ex parte.
The record showed the Defendants' counsel received the Plaintiff's letter inviting them to fix a hearing date (received stamp 13th December 2011) and was served with a hearing notice dated 9th January 2012 for the 9th May 2012 hearing, supported by an undisputed affidavit of service. A notice for delivery of judgment on 19th August 2013 was addressed to counsel for both parties, with no affidavit denying receipt. The Defendants never attended court throughout the over 20 years the suit was pending.
Non-joinder of the co-administrator and of registered proprietors of the subdivided parcels
Non-joinder does not vitiate the proceedings or judgment.
The Plaintiff sued in his own capacity claiming the whole of Uholo/Ugunja/264, not as administrator, so failure to confirm the grant or enjoin the co-administrator was immaterial. The third parties who acquired registration of the subdivided parcels between 2003 and 2009, while the suit was pending, should have applied to be enjoined. In any event Order 1 Rule 9 provides that no suit is defeated by misjoinder or nonjoinder of parties.
Whether execution without an extracted decree was unlawful
No prejudice was shown; the court order was procedurally issued under Order 21 Rule 8(7).
Although there was no evidence of a decree being prepared and submitted for approval after the 19th August 2013 judgment, the Defendants demonstrated no prejudice from the issuance of a court order in place of a decree, and the order was issued after approval in accordance with Order 21 Rule 8(7) of the Civil Procedure Rules.
Whether absence of pre-trial conference under Section 19 of the Environment and Land Court Act vitiated the proceedings
It did not; pleadings had closed before the hearing date was fixed.
The suit predated the 2010 amendments introducing Order 11 pretrial directions. The Plaintiff had filed all statements and documents before the hearing, and the record showed no pending request by the Defendants for filing of statements and documents. The claim that the hearing was premature was not based on fact, as pleadings had closed before the hearing date was fixed.
Legal principles established
#- A part-heard land case pending before the High Court when the Environment and Land Court was operationalized was properly heard, determined and judgment delivered by the same High Court Judge under the transitional provisions and the Chief Justice's practice directions.
- Once hearing notice is served on a party's advocate on record, the duty of the opposing party is discharged; a party who attributes non-attendance to counsel's negligence must seek recourse against that advocate.
- No suit is defeated by reason of misjoinder or nonjoinder of parties; the court deals with the controversy so far as regards the parties actually before it.
Court orders
#- 1.The Defendants' notice of motion dated 25th July 2016 is dismissed.
- 2.Costs of the application to the Plaintiff.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution 2010 and the Environment and Land Court Act No.19 of 2011; pending proceedings preserved under Article 22 of the Sixth Schedule and Section 30 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mellitus Oluoch Odero v Daudi Otieno Othuon & 6 others [2017] KEELC 3562 (KLR)", Case Analysis (2017). Not stated in the judgment (ruling on the Defendants' notice of motion dated 25th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3562/eng@2017-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.