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ELCStruck OutNot stated in the ruling· [2024] KEELC 5403 (KLR)

Ochieng v Munda & 2 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5403 (KLR)

Not expressly named; delivered at Migori before a Judge (appellate jurisdiction over a decision of Justice Mohamed N. Kullow, indicating the Environment and Land Court at Migori)
18 July 2024
GOG. M. A. Ongondo
347 words in judgment
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The bottom line

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A Migori court struck out an application for stay of execution and review because the applicant's lawyer ignored court directions and failed to attend the hearing.

What this practically means

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Executive summary

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This ruling by G.M.A. Ongondo, Judge, delivered at Migori on 18th July 2024, dealt with a Notice of Motion dated 10th November 2023 by the Appellant/Applicant, through H. Obach and Partners Advocates, seeking stay of execution of the decree arising from a Ruling of Justice Mohamed N. Kullow delivered on 23rd October 2023, and a review of that ruling, with costs. The respondents, through Odondi Awino and Company Advocates, opposed the motion by a Replying Affidavit sworn on 23rd July 2024. The court directed that the application be heard by written submissions per its directions of 15th January and 6th December. The applicant's counsel failed to comply with those directions and did not attend the hearing, despite being notified of the date by the Deputy Registrar. Ms. Agade, instructed by Mr. Odondi Awino for the 1st respondent, confirmed the applicant's default and urged dismissal with costs. The court held, applying James Kanyiite Nderitu v Marios Philotas Ghukas and another (2016) eKLR and Articles 48 and 50(1) of the Constitution, that the applicant had been afforded a fair opportunity to be heard and that there was no justification for the non-compliance and non-attendance. The application was found inept, struck out, with costs to the 1st respondent. No review or stay was granted and the underlying ruling of 23rd October 2023 was not disturbed.

Key legal issues

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01

Whether the applicant was denied a fair hearing

Holding

No - the applicant was afforded a fair opportunity to be heard; its counsel simply failed to comply with directions and attend.

Reasoning

The court directed that the application be heard by written submissions. The applicant's counsel was notified of the hearing date by the Deputy Registrar but failed to comply with the orders of 15/1/2023 and 6/12/2023 and did not attend. Relying on James Kanyiite Nderitu v Marios Philotas Ghukas and Articles 48 and 50(1) of the Constitution, the court held the fair-hearing rights were satisfied.

p. 2

Legal principles established

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  • A party afforded a fair opportunity to be heard whose counsel fails to comply with the court's directions and attend court cannot claim a breach of the right to a fair hearing; the remedy is dismissal or striking out of the defaulting application.

Court orders

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  1. 1.The application is struck out with costs to the 1st respondent
On appeal from
Not stated (Ruling of Justice Mohamed N. Kullow)
Jurisdiction invoked
Not stated in the ruling

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, "Ochieng v Munda & 2 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5403 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5403/eng@2024-07-18

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