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ELCOtherNot stated in judgment (Homa Bay ELC; related to Homa Bay ELC Appeal No. E005 of 2021)· [2024] KEELC 770 (KLR)
Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 770 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Homa Bay (G.M.A Ongondo, J) determined a Notice of Motion dated 27th September 2023 by the defendant/applicant, Salmon Kwanya Adel, seeking review, variation and/or setting aside of the court's entire ruling delivered on 27th September 2023, under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. The applicant argued there was a glaring error apparent on the face of the record, that this court could not issue parallel verdicts between the same parties over the same subject matter, and that following the court's judgment in Homa Bay ELC Appeal No. E005 of 2021, which held that the trial court lacked jurisdiction and that the claim belonged in the Rent Restriction Tribunal, the dispute had been lodged before the Rent Restriction Tribunal and was active there. The plaintiff/respondent opposed, contending there was no error apparent on the face of the record, no new and important matter of evidence, no sufficient cause for review, and that the order sought to be reviewed had not been extracted or annexed, which was fatal. Neither party filed submissions. The court, invoking its powers under Section 13(7)(a) of the Environment and Land Court Act read with Sections 3 and 3A of the Civil Procedure Act, noted that its ruling of 27th September 2023 had directed preservation of the suit land pending determination of the issues of law raised, in line with the doctrine of lis pendens. It further directed that the applicant's preliminary objection on points of law take precedence and be heard on a priority basis. The application was held in abeyance pending the outcome of the preliminary objection, with no orders as to costs.
Key legal issues
#01
Whether there is an error apparent on the face of the record or other sufficient cause warranting review of the ruling of 27th September 2023
Holding
The court did not decide the review on its merits; instead it found that the preservation orders in the ruling should stand under the doctrine of lis pendens and that the applicant's preliminary objection should first be determined.
Reasoning
The court perused its ruling of 27th September 2023 and noted it had directed preservation of the suit land pending determination of the issues of law raised in the pleadings. Invoking lis pendens (Ogada v Mollin) and the authority for priority hearing of preliminary objections (Mukisa Biscuits), it deferred the review application rather than grant or refuse it outright, effectively preserving the status quo.
p. 2
Legal principles established
#- The subject matter of a suit should be preserved pending determination of the issues raised in the pleadings in accordance with the doctrine of lis pendens.
- A preliminary objection on points of law as discerned in a party's pleading should take precedence and be heard on a priority basis.
- The court may invoke its inherent powers to make orders necessary for the ends of justice or to prevent abuse of its process.
Court orders
#- 1.The application by way of Notice of Motion dated 27th September 2023 is held in abeyance pending the outcome of the Preliminary Objection
- 2.No orders as to costs of the application
- Jurisdiction invoked
- Section 13(7)(a) of the Environment and Land Court Act, 2015 as read with Sections 3 and 3A of the Civil Procedure Act; Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 770 (KLR)", Case Analysis (2024). Not stated in judgment (Homa Bay ELC; related to Homa Bay ELC Appeal No. E005 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/770/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.