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ELCOtherEnvironment & Land Petition 5 of 2021· [2023] KEELC 175 (KLR)

Aluoch v Okeya (Environment & Land Petition 5 of 2021) [2023] KEELC 175 (KLR)

Environment and Land Court of Kenya
18 January 2023
257 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan land petition between family members ended without a decision when the petitioner withdrew it, and each side bore no costs.

What this practically means

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Executive summary

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This brief concerns a petition dated August 20, 2018, filed on January 20, 2019 by the petitioner, George Atieno Aluoch, through M/s Nyauke and Company Advocates, against the respondent, Maurice Aluoch Okeya, who appeared through M/s Owade and Company Advocates. The petitioner sought a declaration that the respondents' actions of showing him where to establish his home and establishing a home for him on his property accorded with Luo customary law, were protected under the Constitution, and that the portion where his home was situate amounted to a gift inter vivos protected at law; he also sought an order that each party bear their own costs as the matter involved close family members. The respondent filed a memorandum of appearance but never filed a response to the petition despite several notifications, including notices of March 9, 2021 and September 14, 2021. The court, per G.M.A Ong'ondo J, observed that the respondent opted not to respond, citing Ogada v Mollin (2009) KLR 620. Ultimately the petitioner's counsel prayed for withdrawal of the petition with no orders as to costs. The court found the application merited, marked the petition as withdrawn with no orders as to costs, and so ordered on January 18, 2023 at Homa Bay. No substantive determination was made on the customary law or gift inter vivos questions, so no prior or underlying decision was disturbed.

Key legal issues

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01

Withdrawal of a petition with no orders as to costs

Holding

The court allowed the petitioner's counsel's request for withdrawal of the petition with no orders as to costs.

Reasoning

The petitioner's counsel prayed for withdrawal of the petition with no orders as to costs. There was no response to the petition despite the respondent's counsel being notified severally, and the respondent opted not to respond. The court found the application merited and marked the petition as withdrawn with no orders as to costs, the matter involving close family members.

p. 2

Legal principles established

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  • Where the respondent opts not to respond to a petition despite notice, the court may proceed on the basis that the respondent has elected not to contest it.

Court orders

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  1. 1.The petition is marked as withdrawn with no orders as to costs.
  2. 2.It is so ordered.

Authorities

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Cases cited (1)

  • Ogada-versus Mollin
    (2009) KLR 620
Jurisdiction invoked
Original petition jurisdiction of the court (petition dated August 20, 2018); no specific constitutional or statutory provision invoked on the face of the judgment.

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, "Aluoch v Okeya (Environment & Land Petition 5 of 2021) [2023] KEELC 175 (KLR)", Case Analysis (2023). Environment & Land Petition 5 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/175/eng@2023-01-18

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