Ochieng v Munda & 2 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5403 (KLR)
The bottom line
#A Migori court struck out an application for stay of execution and review because the applicant's lawyer ignored court directions and failed to attend the hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 10th November 2023 seeking stay of execution and review of the ruling of 23rd October 2023 should be allowed, given the applicant's counsel's non-compliance with the court's directions on written submissions and non-attendance
Key legal issues
#Whether the applicant was denied a fair hearing
No - the applicant was afforded a fair opportunity to be heard; its counsel simply failed to comply with directions and attend.
The court directed that the application be heard by written submissions. The applicant's counsel was notified of the hearing date by the Deputy Registrar but failed to comply with the orders of 15/1/2023 and 6/12/2023 and did not attend. Relying on James Kanyiite Nderitu v Marios Philotas Ghukas and Articles 48 and 50(1) of the Constitution, the court held the fair-hearing rights were satisfied.
Legal principles established
#- A party afforded a fair opportunity to be heard whose counsel fails to comply with the court's directions and attend court cannot claim a breach of the right to a fair hearing; the remedy is dismissal or striking out of the defaulting application.
Court orders
#- 1.The application is struck out with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Not stated (Ruling of Justice Mohamed N. Kullow)
- Jurisdiction invoked
- Not stated in the ruling
Relief refused
#Stay of execution of the decree from the Ruling of Justice Mohamed N. Kullow delivered on 23rd October 2023
The application failed for the applicant's non-compliance with directions and non-attendance
Review of the ruling delivered on 23rd October 2023
The application was struck out without being heard on the merits
Costs
Costs of the application awarded to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the foregone, the application is inept and fails. The same is hereby struck out with costs to the 1st respondent.
Clearly, the applicant was afiorded a fair opportunity to be heard on the application as held in James Kanyiite Nderitu v Marios Philotas Ghukas and another (2016) eKLR and Articles 48 and 50 (1) of the Constitution of Kenya 2010.
There is no reason for noncompliance with the orders and nonattendance in court on the part of the applicant.
Issues in the judgment
#The court and case number are not identified in the ruling, and the parties are referred to only as Appellant/Applicant and respondents without names.
Internal date inconsistencies: directions said to have been issued on 15/1/2023 and 6/12/2023, though the motion is dated 10th November 2023 and the ruling below 23rd October 2023, suggesting the years should likely be 2024.
Inconsistent spelling of counsel's name: 'Odondi Awino and Company Advocates' versus 'Odondi Owino'.
The Replying Affidavit is dated 23/7/2024, which post-dates some proceedings references but is close to the delivery date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Munda & 2 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5403 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5403/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.