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ELCDismissedEnvironment & Land Case 76 of 2014· [2022] KEELC 15020 (KLR)

Aiska & another v Oyenga & 3 others; Asika (Interested Party)

Environment and Land Court
25 November 2022
BOBoaz N. Olao
1,130 words in judgment
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The bottom line

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The Environment and Land Court in Busia dismissed a self-represented party's attempt to remove himself from a land case, ruling he was never actually joined by any court order.

What this practically means

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Executive summary

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This ruling by BN Olao J of the Environment and Land Court at Busia determined a notice of motion dated May 17, 2022 by Godfrey Ogude Asika, an interested party acting in person. He sought extension of time to file the application, disallowance of the amendment that enjoined him as an interested party (including land parcels Marach/Esikoma/1688, 1310 and 1311), and striking out of the amended counter-claim against him, with costs. The background was a notice of motion dated March 10, 2020 by the defendants seeking joinder of parties and amendment, dismissed by Deputy Registrar P Y Kulecho on September 23, 2020. On appeal, Omollo J by judgment of April 29, 2021 partially allowed the appeal, enjoining George Otako Oyenga, Charles Otako and Francis Otako as 2nd, 3rd and 4th defendants and granting leave to amend the plaint, defence and counter-claim, with each party bearing their own costs. Olao J held that at no point did Omollo J enjoin the applicant as an interested party; the prayer to enjoin him as a plaintiff had been dismissed and was not revived on appeal. The applicant's motion was therefore a misapprehension of that judgment. The application was dismissed with costs to the defendants. Only counsel for the defendants filed submissions; the applicant filed none.

Key legal issues

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01

Whether the applicant was ever enjoined as an interested party by the judgment of Omollo J

Holding

The court held that Omollo J only allowed the joinder of the 2nd, 3rd and 4th defendants and leave to amend; no order enjoined the applicant as an interested party, so his application was misconceived

Reasoning

The court examined the judgment of Omollo J delivered on April 29, 2021, which set aside the deputy registrar's dismissal and allowed joinder of George Otako Oyenga, Charles Otako and Francis Otako as defendants, with leave to amend. The prayer to enjoin the applicant as a plaintiff had been dismissed and was not revived on appeal. The applicant's grievance therefore rested on a misreading of that judgment.

p. 3

Legal principles established

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  • A party cannot be treated as enjoined in proceedings where no court order actually enjoined them; a motion premised on such misapprehension fails

Court orders

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  1. 1.The notice of motion dated May 17, 2022 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 rule 1(2), Order 8 rule 3, Order 49 rule 6, Order 8 rule 2
On appeal from
Deputy Registrar (Environment and Land Court, Busia)
Notice of motion dated March 10, 2020
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 49 rule 6 and Order 8 rule 2 of the Civil Procedure Rules

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, "Aiska & another v Oyenga & 3 others; Asika (Interested Party)", Case Analysis (2022). Environment & Land Case 76 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15020/eng@2022-11-25

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