Case ID:185920

Chris Antone Ouko & 2 others v Peter Omoi Opado & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Appeal 20 of 2021 (Formerly Migori ELC Appeal 9 of 2020)

Parties:

Chris Antone Ouko, John Nyadongo Olwero & James Otieno Olwer v Peter Omoi Opado, Margaret Endesia & John Otieno Opapa

Date Delivered:

16 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Homa Bay

Case Action:

Ruling

Judge(s):

George Martin Atunga Ong'ondo

Citation:

Chris Antone Ouko & 2 others v Peter Omoi Opado & 2 others [2021] eKLR

Advocates:

Mr G S Okoth, learned counsel for the applicants/appellants

Mr S Nyauke, learned counsel for the respondents

Court Division:

Environment and Land

County:

Homa Bay

Advocates:

Mr G S Okoth, learned counsel for the applicants/appellants

Mr S Nyauke, learned counsel for the respondents

History Advocates:

Both Parties Represented

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT HOMA BAY

ELC APPEAL NO 20 OF 2021

(FORMERLY MIGORI ELC APPEAL NO. 9 OF 2020)

1. CHRIS ANTONE OUKO............................................1

ST

APPELLANT/APPLICANT

2. JOHN NYADONGO OLWERO................................2

ND

APPELLANT/APPLICANT

3. JAMES OTIENO OLWER........................................3

RD

APPELLANT/APPLICANT

-VERSUS

1) PETER OMOI OPADO..................................................................1

ST

RESPONDENT

2) MARGARET ENDESIA................................................................2

ND

RESPONDENT

3) JOHN OTIENO OPAPA................................................................3

RD

RESPONDENT

RULING

1. The present application by way of notice of motion dated 6

th

November 2020 and filed herein on 19

th

November 2020 was originated pursuant to Order 42 Rule, Order 42 Rule 27 as read with Order 51 Rule 1 of the Civil Procedure Rules 2010. The applicants through M/S G S OKOTH AND COMPANY ADVOCATES have sought that:

a) Spent

b) Spent

c) The Honourable court be pleased to issue an order of stay of execution of the decree and order issued on the 20

th

day of February 2020 and any subsequent orders pending the hearing and determination of the appeal.

d) The Honourable court be pleased to issue an order of inhibition restricting the registration of any transaction pending the hearing and determination of the appeal hereof.

e) The Honourable court be pleased to issue an order allowing the appellant to produce additional evidence to be admitted as part of the record of this appeal at the hearing of the appeal hereof.

f) The costs of this application be awarded in favour of the applicants

2. The anchorage of the application is set out on grounds 1 to 5 thereon. The application is also anchored on the 1

st

applicant’s supporting affidavit of eleven paragraphs sworn on even date and copies of the annexed documents, among them, memorandum of appeal marked as “CA2” herein. At the heart of this appeal is LR No. Kabuoch.K.K/Konyango/4. The trial Magistrate (R.B.N MALOBA, PM) in Homa-Bay Chief Magistrate’s Court Environment and Land CASE No. 5 of 2018 rendered judgment on 20

th

February 2020 where the applicants’ suit was dismissed with costs.

3. The respondents through M/S NYAUKE AND COMPANY ADVOCATES opposed the application by way of a relying affidavit sworn on 23

rd

February 2021 by the 3

rd

Respondent and duly filed in court on even date. They termed the same unsubstantiated and lacks merit.

4. Pursuant to this court’s orders and directions of 24

th

February 2021, the applicants’ counsel filed three (3) paged submissions dated 1

st

October 2021. I note the entire submissions.

5. Mr. S. Nyauke, learned counsel for the respondents did not file and serve submissions or at all in this application In lieu thereof, he has informed this court thus;

“ …..

We propose that the notice of motion dated 6

th

November 2021, be allowed in terms of orders 3, 4 and 5 sought therein and costs to abide the appeal….”

6. Mr G S Okoth, learned counsel for the applicants has affirmed the position taken by the respondent’s counsel.

7. I have keenly considered the entire application, the replying affidavit, the applicants’ submissions and heard counsel for the respective parties herein. On that account, are the applicants entitled to the orders sought in the application?

8. It is noteworthy that the respondents have conceded to orders sought in the application. In that regard, the parties are hereby applauded for their decision have the application determined without delay.

9.

Article 159 (2) (b) of the Constitution of Kenya 2010

reads;

“

Justice shall not be delayed

.”

10.

The same Constitution at

Article 159 (2) (c)

, provides for the application of Alternative Dispute Resolution forms. Compromise and or settlement of interlocutory applications including the instant one, is also envisioned thereunder to meet the ends of justice as held in

Hastings Irrigation (K) Ltd-vs-Standard Chartered Bank Ltd and 2 others (1987) KLR 532, Ruithibo-vs-Nyingi (1984) KLR 505 and Kanwal Sarjit Singh Dhiman-vs-Keshavji Jivraj Shah (2008) eKLR.

11.

Moreover, the applicants have an undoubted right to prosecute the present appeal; see

Butt-vs- Rent Restriction Tribunal (1979) eKLR.

12.

It is trite law that the court has the ancillary power of safeguarding the character and integrity of the subject matter of the appeal, pending the resolution of the contested issues; see the Supreme Court of Kenya decision in the case of

Board of Governors, Moi High School, Kabarak and another –vs- Malcolm Bell (2013) eKLR.

13.

To that end, it is the finding of this court that the application is merited. The applicants are entitled to the orders sought in the application.

14. Accordingly, the application dated 6

th

November 2020 commenced by the applicants is hereby allowed in terms of orders 3, 4 and 5 sought therein and as stated in paragraph 1 (c), (d) and (e) hereinabove.

15. Costs of the application to be costs in this appeal.

16. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT HOMA BAY THIS 16TH DAY OF NOVEMBER 2021.

G M A ONGONDO

JUDGE

In the presence of;

Mr G S Okoth, learned counsel for the applicants/appellants

Mr S Nyauke, learned counsel for the respondents

Okello A, court assistant.

G M A ONGONDO

JUDGE