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ELCOtherNot stated in judgment (Homa Bay ELC; related to Homa Bay ELC Appeal No. E005 of 2021)

Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 770 (KLR)

Environment and Land Court
20 February 2024
GOG.M.A Ongondo
894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (G.M.A Ongondo, J) determined a Notice of Motion dated 27th September 2023 by the defendant/applicant, Salmon Kwanya Adel, seeking review, variation and/or setting aside of the court's entire ruling delivered on 27th September 2023, under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. The applicant argued there was a glaring error apparent on the face of the record, that this court could not issue parallel verdicts between the same parties over the same subject matter, and that following the court's judgment in Homa Bay ELC Appeal No. E005 of 2021, which held that the trial court lacked jurisdiction and that the claim belonged in the Rent Restriction Tribunal, the dispute had been lodged before the Rent Restriction Tribunal and was active there. The plaintiff/respondent opposed, contending there was no error apparent on the face of the record, no new and important matter of evidence, no sufficient cause for review, and that the order sought to be reviewed had not been extracted or annexed, which was fatal. Neither party filed submissions. The court, invoking its powers under Section 13(7)(a) of the Environment and Land Court Act read with Sections 3 and 3A of the Civil Procedure Act, noted that its ruling of 27th September 2023 had directed preservation of the suit land pending determination of the issues of law raised, in line with the doctrine of lis pendens. It further directed that the applicant's preliminary objection on points of law take precedence and be heard on a priority basis. The application was held in abeyance pending the outcome of the preliminary objection, with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant established sufficient grounds under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules for review, variation or setting aside of the court's ruling delivered on 27th September 2023

Key legal issues

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Whether there is an error apparent on the face of the record or other sufficient cause warranting review of the ruling of 27th September 2023

Holding

The court did not decide the review on its merits; instead it found that the preservation orders in the ruling should stand under the doctrine of lis pendens and that the applicant's preliminary objection should first be determined.

Reasoning

The court perused its ruling of 27th September 2023 and noted it had directed preservation of the suit land pending determination of the issues of law raised in the pleadings. Invoking lis pendens (Ogada v Mollin) and the authority for priority hearing of preliminary objections (Mukisa Biscuits), it deferred the review application rather than grant or refuse it outright, effectively preserving the status quo.

p. 2

Legal principles established

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  • The subject matter of a suit should be preserved pending determination of the issues raised in the pleadings in accordance with the doctrine of lis pendens.
  • A preliminary objection on points of law as discerned in a party's pleading should take precedence and be heard on a priority basis.
  • The court may invoke its inherent powers to make orders necessary for the ends of justice or to prevent abuse of its process.

Court orders

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  1. 1.The application by way of Notice of Motion dated 27th September 2023 is held in abeyance pending the outcome of the Preliminary Objection
  2. 2.No orders as to costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015 as read with Sections 3 and 3A of the Civil Procedure Act; Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010

Relief refused

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Review, variation and/or setting aside of the entire ruling delivered on 27th September 2023

The court did not rule on the merits of the review but deferred determination, holding the application in abeyance pending the applicant's preliminary objection, which it directed should take precedence and be heard on a priority basis.

p. 2

Costs

No orders as to costs of this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application by way of a Notice of motion dated 27th September 2023, is hereby held in abeyance pending the outcome of the Preliminary Objection.
p. 2Final orders - disposition
in order for the issues raised in the main suit to be determined, there is need to preserve the subject matter of the suit in accordance with the doctrine of lis pendens as held in Ogada v Mollin (2009) KLR 620.
p. 2Lis pendens and preservation of subject matter
No orders as to costs of this application.
p. 3Costs

Issues in the judgment

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minor

The judgment describes the application as seeking review of a ruling 'delivered on 27th September 2023' but elsewhere records that the court's prior judgment in Homa Bay ELCA No. E005 of 2021 was 'delivered on 8th March 2023', leaving the sequence of the two decisions unclear.

minor

The parties are referred to only by role; the name of the plaintiff/respondent is not given anywhere in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon v Adel (Environment & Land Case E006 of 2023) [2024] KEELC 770 (KLR)", Case Analysis (2024). Not stated in judgment (Homa Bay ELC; related to Homa Bay ELC Appeal No. E005 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/770/eng@2024-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.