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ELCDismissednot_stated_in_judgment· [2020] KEELC 71 (KLR)

Symon Onyango Okumu v John Otieno Odero & another [2020] KEELC 71 (KLR)

Environment and Land Court
11 March 2020
803 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 dismissed a landowner's application because his lawyer missed deadlines and targeted the wrong pleading — a costly procedural lesson.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Migori delivered by G.M.A. Ongondo, J, on 11th March 2020, on an oral application made on 6th February 2020 by Mr. Capis Omolo Gembe, counsel for the defendants/respondents, John Otieno Odero and Joseph Onyango Odero. Counsel sought the striking out of the applicant's submissions dated 30th October 2019 and, if successful, dismissal of the applicant's notice of motion dated 2nd May 2019, which sought leave to amend a plaint dated 24th April 2018 and reopening of proceedings. The background was that on 22nd October 2019 the court had directed the parties to file and serve written submissions on the motion within 30 days under Order 51 Rule 16 of the Civil Procedure Rules and Practice Direction 33 of the ELC Practice Directions 2014. The applicant's counsel filed submissions but failed to serve them; on 5th December 2019 he was granted seven days to serve but did not do so, and neither he nor his client attended court on 6th February 2020. The court held that the applicant's counsel had violated the respondents' rights under Articles 48 and 50(1) of the Constitution. It further found a fundamental lapse in the motion itself, since the suit had been instituted by originating summons dated 25th September 2014, not by the plaint the motion sought to amend, so Article 159(2)(d) could not rescue the applicant. The court struck out the submissions and dismissed the motion with costs in the cause. The suit itself, which is part heard, remains pending.

Key legal issues

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01

Whether failure to serve submissions in compliance with court directions warranted striking out the submissions and dismissing the motion

Holding

Yes. The applicant's counsel was given latitude to file and serve submissions and failed to serve them, violating the respondents' rights under Articles 48 and 50(1) of the Constitution; combined with the fundamental lapse in the motion, the motion was devoid of merit and was dismissed with the submissions struck out.

Reasoning

The court had on 22nd October 2019 directed parties to file and serve written submissions within 30 days under Order 51 Rule 16 of the Civil Procedure Rules and Practice Direction 33 of the ELC Practice Directions 2014. The applicant filed submissions but failed to serve them. On 5th December 2019 a seven-day extension to serve was granted, yet by 6th February 2020 service had still not occurred, and the applicant and counsel were absent without explanation. The court weighed these failures against the applicants' Article 159(2)(d) obligation and found no basis for indulgence.

p. 2
02

Whether a notice of motion seeking amendment of a plaint could lie in a suit instituted by originating summons

Holding

No. The motion sought to amend a plaint dated 24th April 2018, but the suit was generated by an originating summons dated 25th September 2014; this was a fundamental lapse that deprived the applicant of the benefit of Article 159(2)(d).

Reasoning

The court examined the pleadings and observed that the substantive motion sought principal orders of leave to amend the plaint and reopening of proceedings. Since the suit originated by originating summons, the motion was misconceived at its foundation. The court considered this defect together with the counsel's procedural non-compliance and held that the constitutional imperative of substantive justice under Article 159(2)(d) could not cure a fundamental lapse of this kind.

p. 2

Legal principles established

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  • The right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system

Court orders

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  1. 1.The applicant's submissions dated 30th October 2019 struck out of the record
  2. 2.The applicant's notice of motion dated 2nd May 2019 dismissed with costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Environment and Land Court Practice Directions, 2014Practice Direction 33

Cases cited (2)

  • Onyango Oloo –vs- Attorney General
    (1986-1989) EA 456
  • James Kanyiita Nderitu and another –vs- Marios Philotas Ghikas and another
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Articles 48, 50(1) and 159(2)(d) of the Constitution of Kenya, 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, "Symon Onyango Okumu v John Otieno Odero & another [2020] KEELC 71 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/71/eng@2020-03-11

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