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ELCOtherELC Case No. 38 of 2020· [2021] KEELC 4084 (KLR)

Joseph Odongo Opiyo v Benjamin Okwaro Estika [2021] KEELC 4084 (KLR)

Environment and Land Court of Kenya at Migori
4 March 2021
GOG.M.A. Ongondo
738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Before transferring and merging two land disputes over the same property, the court will first examine the lower court's original record itself.

What this practically means

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Executive summary

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This is an interlocutory ruling (Ruling No. 1) of the Environment and Land Court at Migori in ELC Case No. 38 of 2020. The plaintiff, Joseph Odongo Opiyo, moved the court by notice of motion dated 31st July 2020 seeking orders that Ndhiwa SRMCC ELC No. 14 of 2020, a subordinate court suit concerning the same property, LR No. Homabay/Kawere Konyango Karading/3413, be withdrawn and transferred to the ELC, and that the two suits be consolidated and heard simultaneously. The respondent, Benjamin Okwaro Estika, who had filed the Ndhiwa suit, opposed the application through a replying affidavit describing the applicant's originating summons and application as abuses of the court's process. Both counsel filed submissions pursuant to the court's directions of 19th November 2020. The court observed that it was common ground that the two suits concerned the same subject property and, guided by Article 159(2)(b) and (e) of the Constitution, sections 1A, 1B, 3 and 3A of the Civil Procedure Act, section 3 of the Environment and Land Court Act, and the Court of Appeal decision in Kanwal Sirjit Singh Dhimani v Kashvji Jivraji Shah on the ends of justice, declined to grant the orders sought at that stage. Instead, it directed the Deputy Registrar to urgently call for the original record and certified proceedings in the Ndhiwa case so the court could examine them, fixed the application for further orders and directions on 19th April 2021, and directed service on the respondent's counsel. Costs were to abide the cause.

Key legal issues

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01

Transfer and consolidation of suits concerning the same subject matter from a subordinate court to the ELC

Holding

The court did not grant the transfer/consolidation orders immediately; it invoked its overriding objective powers to first call for and examine the original subordinate court record before further directions

Reasoning

The court noted it was common ground that the respondent had filed Ndhiwa PM's Court ELC No. 14 of 2020 and the applicant had filed the instant suit over the same property. Guided by Article 159(2)(b) and (e) and sections 1A, 1B, 3 and 3A of the Civil Procedure Act, and adopting the Court of Appeal decision in Kanwal Sirjit Singh Dhimani v Kashvji Jivraji Shah on the ends of justice, the court opted to examine the original records in both suits before granting the orders sought, and listed the application for further directions.

p. 1

Legal principles established

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  • Courts exist for the purposes of dispensing justice; the sword of justice cuts both ways and the two divergent interests in a case must be balanced

Court orders

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  1. 1.The Deputy Registrar of the court to urgently call for the original record and typed certified copies of proceedings and orders, if any, in respect of Ndhiwa Principal Magistrate's Court Environment and Land Court Case No. 14 of 2020 for purposes of satisfying the court as to the correctness therein vis-a-vis the contention of the parties, for further consideration
  2. 2.The application fixed for further orders and directions on 19th April 2021
  3. 3.The applicant's counsel to serve the respondent's counsel
Jurisdiction invoked
Article 159(2)(b) and (e) of the Constitution of Kenya, 2010; sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); sections 3 of the Environment and Land Court Act, 2015

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, "Joseph Odongo Opiyo v Benjamin Okwaro Estika [2021] KEELC 4084 (KLR)", Case Analysis (2021). ELC Case No. 38 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4084/eng@2021-03-04

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