Case Metadata |
|
Case Number: | Petition 005 of 2021 |
---|---|
Parties: | Abdi Sora Dalla & Isack Abduba Fayo v Adan Denge Guracha & 9 others; Northern Rangelands Trust & another (Interested Parties) |
Date Delivered: | 14 Mar 2022 |
Case Class: | Civil |
Court: | Environment and Land Court at Isiolo |
Case Action: | Ruling |
Judge(s): | Peter Muchoki Njoroge |
Citation: | Abdi Sora Dalla & Isack Abduba Fayo v Adan Denge Guracha & 9 others; Northern Rangelands Trust & another (Interested Parties) [2022] eKLR |
Advocates: | Miss Nyasani h/b Ogolla for the 1st Interested Party. Ashava h/b Manassess Kariuki for 1st to 6th Respondents |
Court Division: | Environment and Land |
County: | Isiolo |
Advocates: | Miss Nyasani h/b Ogolla for the 1st Interested Party. Ashava h/b Manassess Kariuki for 1st to 6th Respondents |
History Advocates: | Both Parties Represented |
Case Outcome: | Preliminary Objection dismissed |
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
AT ISIOLO
PETITION NO. 005 OF 2021
ABDI SORA DALLA...................................................................................................1ST PLAINTIFF
ISACK ABDUBA FAYO.............................................................................................2ND PLAINTIFF
-VERSUS-
ADAN DENGE GURACHA & 9 OTHERS...............................................................DEFENDANTS
-AND-
NORTHERN RANGELANDS TRUST & ANOTHER.............................INTERESTED PARTIES
RULING
1. The Notice of Preliminary Application filed by the 1st Interested Party states as follows:
NOTICE OF PRELIMINARY OBJECTION (PO)
TAKE NOTICE that the 1st Interested Party, THE NORTHERN RANGELANDS TRUST, will raise the following preliminary points of law at the earliest available opportunity and urge the Court to strike out the entire Petition on the following GROUNDS:
1. This Honourable Court lacks jurisdiction to entertain the Petition and the Notice of Motion dated 21 September 2021 (the ‘Motion’) in view of s. 117 of the Wildlife Conservation and Management Act, 2013.
2. There are no requirements known to law of declaration or gazettement of a community or any other Wildlife Conservancy. As such, the Petition and the Motion are misconceived, fatally incompetent and an exercise in futility.
3. This Honourable Court lacks first-instance jurisdiction to entertain the Petition and the Motion in view of s. 42 of the Community Land Act, 2016. In any event, the Petitioners have not demonstrated any exceptional circumstances.
4. The petition does not meet the basic threshold requirements for a constitutional Petition.
DATED at NAIROBI this 11th day of NOVEMBER, 2021
OCHIENG’ OGOLA & COMPANY
ADVOCATES FOR THE 1ST INTERESTED PARTY
2. From the record, it is clear that the 7th respondent and the 2nd Interested Party were all along aware of the dates when this matter was to be handled by the Court, although they absented themselves. Hence the fixing of the date of delivery of this ruling in their absence.
3. I have very carefully considered the submissions filed by the concerned parties in support of their veritably incongruent assertions. The arguments raised in their submissions, in many respects, raise matters that can only be canvassed in the main suit.
4. A Preliminary Objection only deals with pure points of law. Where the grounds proffered in support of a Preliminary Objection raise arguments, it is no longer tenable to term such as pure points of law.
5. Ground 1 brings up the issue of S. 117 of the Wildlife Conservation and Management Act, 2013. This is a matter that can only be conclusively handled after arguments of both parties are heard. Ground 2 to the effect that there are no requirements known to law for declaration on gazettement of a community or any other wildlife conservancy, straight away invites arguments. Ground 3 regarding jurisdiction of this court also invites arguments concerning if or if not this court has jurisdiction. Ground 4 to the effect that the impugned Petition does not meet the basic threshold requirements for a Constitutional Petition is veritably nebulous and, therefore, ipso facto, invites arguments and explanation.
6. In the circumstances ,this court issues the following orders:
a. This Notice of Preliminary Objection is hereby dismissed
b. Costs shall be in the cause.
c. Directions on 30/5/2022.
DELIVERED IN OPEN COURT AT ISIOLO THIS 14TH DAY OF MARCH, 2022 IN THE PRESENCE OF:
Court Assistant: Balozi
Miss Nyasani h/b Ogolla for the 1st Interested Party.
Ashava h/b Manassess Kariuki for 1st to 6th Respondents
HON. P. M. NJOROGE
JUDGE