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ELCOtherEnvironment and Land Appeal E003 of 2023· [2023] KEELC 21477 (KLR)

Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee)) v Oloo & 3 others

Environment and Land Court
9 November 2023
GOGMA Ongondo
425 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) disposed of a preliminary objection in an appeal from the Principal Magistrate's Court at Ndhiwa (PMC. ELC E008 of 2021, Onzere E.M., PM, delivered 15th December 2022). The 4th respondent, through Ongoso Ayama and Company Advocates, filed a notice of preliminary objection seeking dismissal of the appeal on three grounds: that the appeal offended section 79G of the Civil Procedure Act and Orders 43 rules 3 and 4 of the Civil Procedure Rules, 2010 - provisions governing the filing of appeals from subordinate courts and interlocutory orders. Before the objection could be argued, the 4th respondent filed a notice of withdrawal on 8th November 2023. Counsel for the appellant (Ms L.K Obwanda) and for the 1st and 3rd respondents (Ms Akinyi, instructed by Quinter Adoyo) raised no objection to the withdrawal. The court, referencing the classic Mukisa Biscuit formulation that a preliminary objection must rest on points of law and may dispose of a suit, held that the 4th respondent had the right to withdraw the objection and that the withdrawal was merited. The notice of preliminary objection was marked as withdrawn with no orders as to costs. The substantive appeal remains pending; no determination was made on the merits of the appeal or the objection's grounds.

Key legal issues

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01

Withdrawal of a preliminary objection

Holding

A party filing a preliminary objection has the right to withdraw it, and the court may mark it withdrawn with no orders as to costs where other parties raise no objection.

Reasoning

The 4th respondent filed a notice of preliminary objection invoking section 79G of the Civil Procedure Act and Orders 43 rules 3 and 4 of the Civil Procedure Rules, seeking dismissal of the appeal. Before hearing, counsel filed a notice of withdrawal. Counsel for the appellant and the 1st and 3rd respondents raised no objection. The court, citing Mukisa Biscuit on the nature of preliminary objections, held the withdrawal merited and marked the objection withdrawn with no orders as to costs.

p. 2

Legal principles established

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  • A preliminary objection must be on points of law and may dispose of a suit

Court orders

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  1. 1.The notice of preliminary objection be and is hereby marked as withdrawn as sought by the 4th respondent with no orders as to costs
On appeal from
Principal Magistrate's Court at Ndhiwa
PMC. ELC E008 of 2021
Jurisdiction invoked
First appeal jurisdiction of the Environment and Land Court (the judgment does not cite the specific provision)

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, "Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee)) v Oloo & 3 others", Case Analysis (2023). Environment and Land Appeal E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21477/eng@2023-11-09

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