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ELCStruck OutSuit on plaint dated 10th July 2013 (number not stated in judgment)· [2017] KEELC 3690 (KLR)

Dan Akello Oyoga v Joseph Akello Oyoga & another [2017] KEELC 3690 (KLR)

Environment and Land Court
24 January 2017
903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because an 'inactive' advocate filed it and the same dispute had already been decided.

What this practically means

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Executive summary

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The Defendants, Joseph Akello Oyoga and Cornel Odeny Odera, filed a preliminary objection dated 20th March 2014 against the Plaintiff Dan Afuoka Ayoo's suit commenced by plaint and notice of motion dated 10th July 2013. Two grounds were raised: that the pleadings were prepared, signed and filed by an advocate without a valid practising certificate, and that the suit was barred by Sections 6 and 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules due to previous suits between the Plaintiff and the 2nd Defendant over the same land, being Siaya SRM CC No. 73 of 2009, Siaya District Land Disputes Tribunal Case No. 34 of 2009 and Kisumu HCCC No. 71 of 2009. The notice was unopposed and prosecuted on 17th October 2016 in the Plaintiff's counsel's absence. The court found from an LSK online search that Obara Adonijah Oiro was 'inactive' in 2013, meaning he was not certified to practise, and that the certificate of urgency signatory's status was 'unknown'. On res judicata, the court found the Tribunal award over Siaya/Karapul-Ramba/1108 was made in the 2nd Defendant's favour and adopted in Siaya PMCC Land Case No. 73 of 2009, which also produced an order lifting the Plaintiff's caution. As to Kisumu HCCC No. 71 of 2009, no pleadings were availed, so no finding of similarity was made. The court held the suit offended Sections 6 and 7 of the Civil Procedure Act and struck out the plaint and notice of motion with costs to the Defendants.

Key legal issues

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01

Whether the plaint and notice of motion were prepared, signed and filed by a person without a valid practising certificate

Holding

The documents were drawn by M/S Obara & Obara Advocates, whose principal's LSK status was 'inactive' in 2013, meaning he was not certified to practise; the certificate of urgency signatory's status was 'unknown'

Reasoning

The court examined the LSK online search annexed to the 2nd Defendant's affidavit, which showed Obara Adonijah Oiro as 'inactive' in 2013, defined as not certified to practise, and Kadera Stephen Ouma as 'unknown'. The certificate of urgency was signed by the latter. The court also noted a letter seeking withdrawal of the suit but made no further finding on that ground, proceeding instead on the res judicata ground.

p. 2
02

Whether the suit is barred by Section 6 and 7 of the Civil Procedure Act (res judicata and sub judice)

Holding

The suit is res judicata: the same parties and subject matter (Siaya/Karapul-Ramba/1108) were decided on merit in Siaya Land Disputes Tribunal Case No. 34 of 2009, whose award was adopted in Siaya PMCC Land Case No. 73 of 2009

Reasoning

The proceedings annexed to the 2nd Defendant's affidavit showed the tribunal award was in favour of the 2nd Defendant and was adopted in Siaya PMCC Land Case No. 73 of 2009 on 15th December 2009, with an order lifting the Plaintiff's caution. Regarding Kisumu HCCC No. 71 of 2009, the court found no pleadings or proceedings were availed and could not determine similarity of that case. The suit was nonetheless struck out on the basis of the decided tribunal and magistrate's court matters.

p. 2
03

Whether the plaint and notice of motion should be struck out

Holding

Yes; struck out with costs to the Defendants

Reasoning

On the combined grounds of want of a valid practising certificate by the filing advocate and res judicata under Sections 6 and 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules, the court struck out both the plaint and the notice of motion and awarded costs to the Defendants, who prosecuted the unopposed preliminary objection.

p. 2

Legal principles established

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  • An advocate whose Law Society of Kenya status is 'inactive' is not certified to practise for the indicated year, and pleadings filed by such an advocate are liable to be struck out
  • A suit whose parties and subject matter were already decided on merit in previous proceedings offends Sections 6 and 7 of the Civil Procedure Act and is struck out

Court orders

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  1. 1.The plaint and notice of motion dated 10th July 2013 are struck out
  2. 2.Costs of the notice of preliminary objection to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 6 and 7
  • Civil Procedure RulesOrder 2 Rule 15
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land Siaya/Karapul-Ramba/1108

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, "Dan Akello Oyoga v Joseph Akello Oyoga & another [2017] KEELC 3690 (KLR)", Case Analysis (2017). Suit on plaint dated 10th July 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3690/eng@2017-01-24

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