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JudgmentDUNCAN OGUTU ONYANGO VS LEOKADIA ATIENO MULUNGI6 min read

DUNCAN OGUTU ONYANGO VS LEOKADIA ATIENO MULUNGI

Environment and Land Court at Homabay Environment and Land Court · · G. A. Ongondo


  1. This ruling is in respect of an application by way of a Notice of Motion dated 8th March 2024 under, inter alia, Articles 48 and 50 of the Constitution of Kenya 2010 and Order 12 Rule 7 of the Civil Procedure Rules 2010 by the applicant/defendant through Quinter Adoyo and Company Advocates for the following orders; (a) THAT the Honourable Court be pleased to set aside the proceedings taken ex-parte on the matter herein before the Court.  (b) THAT the Honourable Court be pleased to allow the Respondent in the Original Summons to file a response and to participate in the matter. (c) THAT the Honourable Court be pleased to make Orders varying and/or setting aside the Orders for stay of proceedings in Mbita ELC Case NO. E015 of 2023 (The Mbita suit herein), to enable the Respondent herein, the Plaintiff in the Mbita suit, to proceed against the rest of the defendants except the Plaintiff in this matter. (d) THAT the Honourable Court be pleased to make Orders that the proceedings against the rest of the defendants in the above-mentioned case proceed because the Plaintiff therein has already withdrawn her case against Dancun Ogutu, the 4th respondent therein. (e) THAT orders be made directing the Respondent/Plaintiff to serve the Applicant/Respondent with all the pleadings and documents, to enable the Applicant/Respondent draft and file a substantive response thereto. (f) THAT the cost of this Application be in the cause.
  2. The application is premised upon the applicant’s supporting affidavit of twelve paragraphs and grounds (a) to (k) stated on it’s face. In summary, the applicant laments, inter alia, that he had neither seen nor been served with  the respondent’s pleadings in this suit until he learnt of the existence of the suit from the proceedings in Mbita suit when he saw a copy of stay orders regarding the Mbita suit. That therefore, he has not prepared a response to this suit. That the applicant has since withdrawn the Mbita suit against the respondent so that the issues between them be canvassed herein. That the application be allowed in the interest of justice.
  3. The respondent/plaintiff through Kerario Marwa and Company Advocates, opposed the application by way of his replying affidavit sworn on 5th June 2024 and implored the court to dismiss it with costs. He averred in part that the application lays no sufficient nor legal basis, is founded on half truths, misleading with no factual basis on which this Honourable court can grant the orders. That the issues in dispute in both Mbita suit and the instant suit are similar as both involves and revolves around ownership of the suit land reference Kaksingri/Kagutu/Waregi/652 which is under the respondent’s use, occupation and possession for over 60 years. That the same parties cannot proceed concurrently before the two different courts as this may result into two courts issuing conflicting decisions respecting the suit land.
  4. Also, the respondent averred that the applicant proceedings against him at the Mbita suit despite being aware that the same had been stayed by an order of this court dated 9th November 2023. That the applicant’s failure to file response was deliberate and the application is brought to obstruct and delay him from getting justice herein. That the application is inept, frivolous, vexatious, hopeless, mischievous, unmeritorious, incompetent and merely intended to intimidate, frustrate and embarrass him.
  5. The application was heard by way of written submissions further to the direction of the court given on 22nd July 2024.
  6. By the submissions dated 8th October 2024, learned counsel for the applicant referred to the application and the response to the same as well as that the orders of stay were obtained ex parte in this suit. That the applicant has the right to be heard. That as noted in the case of Shah-vs-Mbogo and another (1967) EA 116, the court has the discretion to set aside the stay orders. That he was never served in this suit. That the application has been commenced without delay and cited Richard Ncharpi Letyagu-vs-Independent Electoral and Boundaries Commission & 2 others (2013) eKLR.
  7. Moreover, counsel submitted that this court has the jurisdiction since it has an appellate jurisdiction and not to entertain this suit in the first instance. That if given an opportunity, the applicant to raise a preliminary objection on sub judice. That the Mbita suit was filed earlier and that court has original jurisdiction to deal with the issues. That the applicant having withdrawn the Mbita suit against the respondent, the court to set aside orders of stay of the proceedings to enable the applicant proceed with Mbita suit against the rest of the defendants therein.
  8. The respondent’s counsel filed submissions dated 9th October 2024 making reference to application and reply to the same. Counsel submitted two suits namely the Mbita suit and this suit cannot proceed on same issues as this would result to conflicting decisions in the same matter.
  9. Also, counsel submitted that the application is a tact to delay and obstruct the course of justice through the application which is frivolous. That the applicant is an indolent litigant. That the application has been brought in bad faith and the court has the discretion over the application. That the guiding principles were set out in Rayat Trading Co Ltd-vs-Bank of Baroda & Tetezi House Ltd 920180 and Thorn PLC-vs-Macdonold 199 CPLR 660.
  10. In the foregone, the issues that present themselves for determination crystallize to whether there is merit in the application to attract the orders sought in the same.
  11. It is trite law that parties in a case must be made aware of it’s existence to enable them decide whether to appear or not ; See Ogada-vs-Mollin (2009) eKLR.
  12. The respondent was duly served with the application dated 19th October 2023 for stay of proceedings in Mbita suit and the hearing notice in regard to the originating summons as captured in the affidavits of service sworn on 8th October 2023, 19th January 2024, and 29th January 2024 as well as discerned in this court’s ruling delivered on 9th November 2023 and the proceedings of 24th January 2024 herein.
  13. Since the court was satisfied that the respondent had ben served, the suit was heard ex-parte on 8th February 2024. It must be noted that the Plaintiff/respondent (PW1) and Charles Onjong'a Mathokore (PW2) testified in this suit.
  14. Stay of proceedings of Mbita suit was granted on 9th November 2023 herein. Clearly, it would not be right for the two cases to run simultaneously; see also Judicial Commission of Inquiry into the Goldenberg Affair & 3 others-vs-Kilach (2003) KLR 249 at 265/266 and section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya.
  15. The right of access to justice and unlimited right to fair hearing are founded upon Articles 25 (c), 48 and 50 (1) of the Constitution of Kenya 2010.
  16. Further, it is trite law that the right to be heard is fundamental and permeates our entire justice system; see James Kanyiita Nderitu and another-vs Marios Philotas Ghikas and another (2016) eKLR.
  17. A fair opportunity to be heard is a fundamental principle of justice; see Halsbury’s Laws of England 5th Edition 2010 Volume 61 paragraph 639.
  18. In the circumstances, it would be fair to let the applicant respond to the originating summons upon service of the same and all requisite documents as I subscribe to the decision in the case of Philip Chemwolo and another-vs-Augustine Kubende (1986) eKLR.
  19. Sections 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya confer this court with inherent and special powers to meet the ends of justice. Therefore, the Deputy Registrar of this court to call for the original record and typed certified copies of proceedings and order (s) of the Mbita suit for this court deal with prayers 1, 3 and 4 in the application without delay.
  20. Thus, the application dated 8th March 2024 is partially merited. The same is hereby allowed in terms of prayers 2, 5 and 6 in the application as stated in paragraph 1 (b) (e) and (f) hereinabove.
  21. It is so ordered

DATED and DELIVERED at HOMA BAY this 12th day of November 2024.

G  M  A  ONGONDO

JUDGE

PRESENT;

Ms Quinter Adoyo learned counsel for the applicant/defendant

Mr Achola learned counsel for the plaintii/respondent

Mutiva, court assistant

    DUNCAN OGUTU ONYANGO VS LEOKADIA ATIENO MULUNGI DUNCAN OGUTU ONYANGO VS LEOKADIA ATIENO MULUNGI