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ELCOtherOriginating Summons dated June 17, 2019 (filed 18th June 2019), Homa Bay ELC· [2022] KEELC 48 (KLR)

Ndege & another v Okinda & 2 others (Environment & Land Case 11 of 2021) [2022] KEELC 48 (KLR)

Environment and Land Court
21 February 2022
GOG.M.A Ong'ondo
502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Homa Bay Environment and Land Court paused decision-making to first examine earlier case records before ruling on whether this land dispute should proceed.

What this practically means

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Executive summary

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By an Originating Summons dated June 17, 2019, the plaintiffs John Ndege and Odhiambo Ndege sued three defendants claiming a portion of approximately 6.33 hectares forming part of Kabuoch/K/K/Koguta/1245 (registered in the name of the 1st defendant, Peter Owino Okinda) by way of adverse possession. On November 3, 2021, the 1st defendant filed a notice of preliminary objection on six grounds, principally that the court lacked jurisdiction over him and that the suit was res judicata under section 7 of the Civil Procedure Act, having regard to Homa Bay CMC Misc Application No. 18 of 2008 and Ndhiwa PM's ELC No. 3 of 2020. The court, per G.M.A Ong'ondo J, treated the objection as a threshold question requiring definitive and prompt attention, citing Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others (2013) eKLR, and proceeded by written submissions in line with Article 159(2)(b) of the Constitution. Noting that the two prior cases prominently featured in the summons, the objection and the submissions, the court invoked Articles 162(2)(b), 165(6) and 165(7)(a) of the Constitution, sections 3(1) and (2) and 13(7) of the Environment and Land Court Act and sections 1A, 1B, 3 and 3A of the Civil Procedure Act to direct the Deputy Registrar to urgently call for the records of the two prior cases, extended the interim preservation orders of 9th November 2021, and fixed the suit for 18th May 2022 for compliance and further directions. The preliminary objection and the suit were not determined in this ruling; no costs order was made.

Key legal issues

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Whether the court may call for records of related lower-court proceedings before determining a preliminary objection raising jurisdiction and res judicata

Holding

Yes; the court directed the Deputy Registrar to call for the records of the two prior cases to enable a proper determination

Reasoning

The preliminary objection raised jurisdiction and res judicata under section 7 of the Civil Procedure Act, with reference to two prior cases involving the same parties/land. The court held that perusing the records of those cases before determining the objection and the entire suit would meet the best ends of justice, consistent with Article 159(2)(b) that justice shall not be delayed.

p. 2

Legal principles established

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  • A preliminary objection is a threshold question calling for definitive, determinative and prompt attention

Court orders

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  1. 1.The Deputy Registrar of this court to urgently call for the record of the proceedings together with determination, if any, in Homa Bay CMC Misc Application No. 18 of 2008 and Ndhiwa PM's ELC No. 3 of 2020
  2. 2.Interim preservation orders of 9th November 2021 extended accordingly
  3. 3.Suit fixed for 18th May 2022 to confirm compliance and for further directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(6) and (7)(a)
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 7
  • Civil Procedure Act, Chapter 21 Laws of Kenyasections 1A, 1B, 3 and 3A
  • Environment and Land Court Act, 2015 (2011)sections 3(1) and (2) and 13(7)

Cases cited (1)

  • Kakuta Maimai Hamisi-vs-Peris Pesi Tobiko and 2 others
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) as read with Article 165(6) and (7)(a) of the Constitution and sections 3(1) and (2) and 13(7) 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, "Ndege & another v Okinda & 2 others (Environment & Land Case 11 of 2021) [2022] KEELC 48 (KLR)", Case Analysis (2022). Originating Summons dated June 17, 2019 (filed 18th June 2019), Homa Bay ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/48/eng@2022-02-21

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