Environment & Land Petition 12 of 2021

Case Metadata
Case Number:	Environment & Land Petition 12 of 2021
Parties:	Kibuye & 2 others v Arunga & 3 others
Date Delivered:	22 Jun 2022
Case Class:
Court:	Environment and Land Court at Homa Bay
Case Action:	Ruling
Judge(s):	GMA Ongondo
Citation:	Kibuye & 2 others v Arunga & 3 others (Environment & Land Petition 12 of 2021) [2022] KEELC 2996 (KLR) (22 June 2022) (Ruling)
Advocates:	Mr Ngoge, learned counsel for the petitioners, Mr. Odondi Awino, learned counsel for the 1st and 2nd respondents
Court Division:	Environment and Land
County:	Homa Bay
Advocates:	Mr Ngoge, learned counsel for the petitioners, Mr. Odondi Awino, learned counsel for the 1st and 2nd respondents
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

Kibuye & 2 others v Arunga & 3 others (Environment & Land Petition 12 of 2021) [2022] KEELC 2996 (KLR) (22 June 2022) (Ruling)

Neutral citation: [2022] KEELC 2996 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment & Land Petition 12 of 2021

GMA Ongondo, J

June 22, 2022

(FORMERLY MIGORI ELC APPEAL NO. 2 OF 2020)

Between

Isaac Maurice Kibuye

1^st Petitioner

Beatrice Atieno Ochieng

2^nd Petitioner

Isaiah Agwenge Odera

3^rd Petitioner

and

Robert Arunga

1^st Respondent

George Kidenda

2^nd Respondent

Land Registrar Rachuonyo District

3^rd Respondent

Attorney General

4^th Respondent

Ruling

1.The instant petition is set for judgment today further to this Honourable court’s orders and directions given on 9^th May 2022. However, this ruling is rendered in lieu of the expected judgment for reasons stated herein-below in the best interest of justice.

2.In the petition dated 18^th September 2017 and filed in court on 19^th September 2017, the petitioners through the firm of O.P Ngoge and Company Advocates, sought various orders including prohibition and mandamus orders. The same are noted accordingly.

3.The 1^st and 2^nd respondents who are represented by the firm of Odondi Awino and Company Advocates, opposed the petition by grounds of opposition dated 18^th October 2019. The grounds include that no cause of action has been disclosed against the 1^st and 2^nd respondents.

4.The 1^st , 2^nd and 3^rd petitioners filed further affidavits of 17 paragraphs, 18 paragraphs and 12 paragraphs respectively, all sworn on 13^th November 2019.

5.On 16^th February 2022, Ms Sarrah Juma, Litigation Counsel for the Honourable Attorney General sought the indulgence of this court to respond to the petition. She prayed thus;“.....I seek indulgence to file and serve reply and submissions herein......”

6.By a notice of motion dated 2^nd December 2019 (the motion herein), the 1^st and 2^nd respondents sought orders including that the Land Registrar and County Surveyor Rachuonyo North, East and South to ascertain and determine the existing boundaries of the suit parcels of land, LR Nos. Kasipul/Kodera Karabach/765,679,917,715,774 and West Kasipul/Kokal/167. Indeed, interim preservation orders given on 19^th December 2019 determined the said motion.

7.It is noted that on 24^th November 2021, this Court directed, inter alia;a.The parties were encouraged to embrace alternative methods of dispute resolution in this matter pursuant to Articles 60 (1) (g) and 159 (2) (b) of the Constitution of Kenya, 2010.b.The petition be heard by way of written submissions.

8.Consequently, learned counsel for the petitioners filed submissions dated 15^th December 2022 together with a list of authorities while the 1^st and 2^nd respondents’ counsel filed submissions dated 11^th January 2022 on 20^th January 2022. I also note the petitioners’ further submissions dated 31^st January 2022 together with a list of authorities.

9.Interestingly, I have come across the 3^rd and 4^th respondents’ preliminary objection dated 26^th April 2018 filed on even date to the effect that this Honourable court lacks jurisdiction to hear and determine this dispute. Thus, I subscribe to the decision in Kakuta Maimai Hamisi-vs-Peris Pesi Tobiko and 2 others (2013) eKLR, as regards a preliminary objection.

10.In the upshot, the court hereby orders and directs as follows;a.The preliminary objection dated 26^th April 2018 to take precedence and be heard on priority over all other issues in this petition.b.The petition is fixed for directions on 6^th October 2022.c.The petitioners’ counsel to serve the 3^rd and 4^th respondents’ counsel accordingly.

11.Orders accordingly.

G.M.A ONG’ONDOJUDGEDELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 22^ND DAY OF JUNE 2022.G.M.A ONG’ONDOJUDGEPresent1. Mr Ngoge, learned counsel for the petitioners2. Mr. Odondi Awino, learned counsel for the 1^st and 2^nd respondents3. Okello, Court Assistant

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