Nyabera (Suing as the Personal Representative of the Estate of Edward Nyabera Kumba) v Mohabe (Sued as the Personal Representative of the Estate of Nicholas Mohabe Wambura) & another (Environment & Land Case E011 of 2024) [2024] KEELC 13687 (KLR) (29 October 2024) (Ruling) Neutral citation: [2024] KEELC 13687 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ENVIRONMENT & LAND CASE E011 OF 2024 GMA ONGONDO, J OCTOBER 29, 2024 BETWEEN JAMES KUMBA NYABERA (SUING AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF EDWARD NYABERA KUMBA) .......................... PLAINTIFF AND JOHN GETANGITA MOHABE (SUED AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NICHOLAS MOHABE WAMBURA) ........ 1ST DEFENDANT THOMAS OMAHE PHILIP ............................................................ 2ND DEFENDANT RULING 1. This ruling pertains to an oral application generated by Mr David Otieno instructed by Jura learned counsel for the defendants that due to the nature of the defendants’ notice of motion dated 23rd October 2024 (The second application), the same be heard and determined before the plainti’s notice of motion dated 9th August 2024 (The rst application) herein. 2. Counsel has asserted the that the rst application is set for ruling today, 29th October 2024. That the defendants led the second application xed for directions today and there is replying Adavit thereto duly led and served. That the two applications are interrelated. That therefore, this application be allowed hence, the defendants be accorded an opportunity to be heard in the rst application. 3. Mr Sam Onyango learned counsel for the plainti has opposed the application on the grounds that the second application has come too late in the day and urged this court to deliver ruling in regard to the rst application. That the defendants would have an option of setting aside the ruling or prefer an appeal against it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13687/eng@2024-10-29 1
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4. In a rejoinder, learned counsel Mr Otieno has asserted that injunctive orders inclusive of exhumation of body in issue are sought in the rst application. That since the rst application is related to the second application, the defendants may prejudiced if the defendant’s oral application is not granted. 5. In the foregone, is there merit in the defendants’ oral application? 6. It is borne in mind that the rst application is for temporary injunctive relief against the defendants in respect of the suit land reference number Bukira/Bwisaboka/26. In the second application, the defendants are seeking to be heard in the rst application. 7. The right to be heard is fundamental and permeates the entire justice system; see James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR and Philip Chemwolo and another-vs-Augustine Kubende (1986) eKLR . 8. In the premises, this application has merit. So, ruling on the rst application is held in abeyance pending the outcome of the second application to be heard by written submissions on priority basis. 9. I therefore, order and direct that the defendants’ counsel and the plainti’s counsel to le and serve submissions within the next seven (7) and seven (7) days from the date of service of the defendant’s submissions respectively. 10. Interim injunctive orders herein extended accordingly. 11. Ruling on the second application is hereby set for 18th November 2024. 12. It is so ordered. DATED AND DELIVERED AT MIGORI THIS 29TH DAY OF OCTOBER 2024. G M A ONGONDO JUDGE In Presence of ;Mr Sam Onyango learned counsel for the plainti Mr David Otieno learned counsel for the defendants Tom Maurice, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13687/eng@2024-10-29 2
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