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ELCDismissedKisumu Environment and Land Court Misc. Civil Application (arising from appeal filed 22nd September 2016); appeal against ruling in Kisumu CM CC No.398 of 2015· [2017] KEELC 3571 (KLR)

James Onunga Ogutu v Jessica Ogada , Oliech Ogola, Thomas Ago & Jagero Ogalo [2017] KEELC 3571 (KLR)

Environment and Land Court
1 March 2017
SKS. M. Kibunja
1,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court refused to block a burial on disputed land because the applicant had wrongly filed a duplicate case instead of using the original transferred file.

What this practically means

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Executive summary

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The Appellant, James Onunga Ogutu, filed a notice of motion dated 22nd September 2016 seeking a temporary injunction restraining the Respondents from interring the body of Ouko Ogada on L.R. No. Kisumu/Korandu/822 pending the hearing of his appeal against the Resident Magistrate's ruling of 22nd September 2016 in Kisumu CM CC No.398 of 2015. Interim orders were granted exparte on 23rd September 2016. The Respondents opposed the application through grounds of opposition, contending inter alia that the dispute was a burial dispute, not a land ownership matter, and that the application was an abuse of process. At the hearing on 31st January 2017, counsel made rival oral submissions. The court framed three issues: probability of success, orders to issue, and costs. Tracing the litigation history, the court found that Winam S.R.M CC No.87 of 2014, involving the same parties and subject matter, had been transferred to the Environment and Land Court by orders of 24th June 2014 which had never been vacated, set aside or varied; the ruling of 30th June 2015 dismissed an application but did not disturb the transfer order. The Appellant's subsequent filing of Kisumu CM CC No.398 of 2015 over the same subject matter and parties contravened Section 6 of the Civil Procedure Act. Any orders sought had to be pursued in the transferred file. Although the appeal was filed without delay, the Appellant failed to demonstrate probability of success. The notice of motion was dismissed with costs on 1st March 2017.

Key legal issues

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01

Whether the Appellant established a case with probability of success for a temporary injunction pending appeal

Holding

No. The Appellant's suit in Kisumu CM CC No.398 of 2015 was an abuse of process as it duplicated the transferred suit Winam S.R.M CC No.87 of 2014, whose transfer order remained unvaried and unappealed.

Reasoning

The court traced the litigation history: Winam CC No.87 of 2014 was transferred to the Environment and Land Court on 24th June 2014; that order was never vacated. Filing Kisumu CM CC No.398 of 2015 over the same subject matter and parties breached Section 6 of the Civil Procedure Act. Without making factual findings that would pre-empt the appeal, the court held the appeal showed no probability of success.

p. 3
02

Status of the transfer order of 24th June 2014

Holding

The ruling of 30th June 2015 dismissed the application but did not vacate, set aside or review the transfer order of 24th June 2014, which remained operative.

Reasoning

The court compared the orders of 24th June 2014 with the ruling of 30th June 2015 and the lower court's directions of 31st July 2015 directing parties to take further proceedings in the Environment and Land Court. Since the transfer order stood, any orders sought had to be pursued in the file allocated after the transfer.

p. 2

Legal principles established

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  • Where a suit has been transferred by order that remains in force, parties must pursue orders in that transferred file; filing a fresh suit over the same subject matter and between the same parties contravenes Section 6 of the Civil Procedure Act (sub-judice rule)
  • An applicant for interlocutory injunctive relief pending appeal must show the appeal has a probability of success

Court orders

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  1. 1.The notice of motion dated 22nd September 2016 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
On appeal from
Resident Magistrate's Court, Kisumu
Kisumu CM CC No.398 of 2015
Jurisdiction invoked
Appellate/interlocutory jurisdiction of the Environment and Land Court over the transferred suit Winam S.R.M CC No.87 of 2014 (order of 24th June 2014); Civil Procedure Act Chapter 21, Section 6 invoked

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, "James Onunga Ogutu v Jessica Ogada , Oliech Ogola, Thomas Ago & Jagero Ogalo [2017] KEELC 3571 (KLR)", Case Analysis (2017). Kisumu Environment and Land Court Misc. Civil Application (arising from appeal filed 22nd September 2016); appeal against ruling in Kisumu CM CC No.398 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3571/eng@2017-03-01

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