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ELCOtherMiscellaneous Application E013 of 2022· [2023] KEELC 17824 (KLR)

Benson Otieno Adongo v George Adha Adongo & another

Environment and Land Court
7 June 2023
GOGMA Ongondo
344 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 Homa Bay land dispute was settled at family level, so the court abandoned a technical objection and vacated earlier orders.

What this practically means

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Executive summary

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This short ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) disposed of twinned matters in Miscellaneous Application E013 of 2022: the respondents' preliminary objection dated February 13, 2023, and the applicant's notice of motion dated December 16, 2022 together with orders the court had issued on March 2, 2023. Mr Osoro, counsel for both respondents, applied that the preliminary objection (which contended that the applicant's counsel was not properly on record for non-compliance with Order 9 Rules 9, 10 and 11 of the Civil Procedure Rules, 2010) be marked as abandoned with no orders as to costs; that the orders of March 2, 2023 be declared lapsed and vacated; and that costs of the application be borne by the applicant. Ms Okello, holding brief for Owaka for the applicant, confirmed that the dispute had been resolved at family level in the spirit of the alternative justice system under Article 159(2)(c) of the Constitution, and that no appeal had been filed and no security deposited pursuant to the orders of March 2, 2023. The court, having heard counsel and considered the record, marked the preliminary objection as abandoned with no orders as to costs, declared the orders of March 2, 2023 lapsed and vacated them, and ordered the applicant to bear the costs of the application. The ruling was delivered at Homa Bay on June 7, 2023.

Key legal issues

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01

Abandonment of a preliminary objection by consent

Holding

The preliminary objection on Order 9 Rules 9, 10 and 11 compliance was marked as abandoned with no orders as to costs.

Reasoning

Counsel for the respondents applied that the preliminary objection be marked as abandoned with no orders as to costs. The court, having heard both counsel and considered the record, granted that request as part of the disposal of the twinned matters.

p. 2
02

Lapse and vacation of interim orders of March 2, 2023

Holding

The orders issued on March 2, 2023 had lapsed and were vacated, since no appeal had been filed and no security deposited as those orders required.

Reasoning

Counsel for the applicant confirmed that the dispute had been resolved at family level under Article 159(2)(c), that no appeal had been filed and no security deposited pursuant to the orders of March 2, 2023. Counsel for the respondents applied that the orders be declared lapsed and vacated, and the court so ordered.

p. 2

Legal principles established

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  • Matters may be resolved at family level in the spirit of the alternative justice system under Article 159(2)(c) of the Constitution

Court orders

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  1. 1.The preliminary objection dated February 13, 2023 is marked as abandoned with no orders as to costs
  2. 2.The orders of March 2, 2023 are declared lapsed and are vacated
  3. 3.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rules 9, 10 and 11
  • Constitution of Kenya, 2010Article 159(2)(c)
Jurisdiction invoked
Environment and Land Court jurisdiction (not expressly invoked in the ruling); matter handled as a consent/disposal under Article 159(2)(c) 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, "Benson Otieno Adongo v George Adha Adongo & another", Case Analysis (2023). Miscellaneous Application E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17824/eng@2023-06-07

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