Janita Makokha Buluma, Charles Wesonga Richard & Michael Ouma Buluma; Cosmas Buluma ( Interested Party) v Julius Orina Manwari, Esau Wamulanda & Benard Okwara Balongo [2018] KEELC 70 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA IN BUSIA

ENVIRONMENTAL & LAND COURT

ELCNO. 143 OF 2017

JANITA MAKOKHA BULUMA............................... 1st  PLAINTIFF

CHARLES WESONGA RICHARD..........................2ND DECEASED

MICHAEL OUMA BULUMA.................................. 3RD PLAINTIFF

COSMAS BULUMA................................4TH INTERESTED PARTY

VERSUS

JULIUS ORINA MANWARI................................. 1ST DEFENDANT

ESAU WAMULANDA.............................................2ND DEFENDANT

BENARD OKWARA BALONGO..........................3RD DEFENDANT

7/5/2018

Before: Hon. A. K. Kaniaru – J

CA: Nelson

Parties Present

Interpretation: English/Kiswahili

Manuari for 2nd and 3rd Defendants

Court: The matter is coming for preliminary Objection dated 22/4/2018 and filed on 23/4/2018.  Hearing now.

E X T E M P O R E    R U L I N G

I need not retreat to my chambers to make this ruling.  It is a simple ruling.  The Interested Party has raised a Preliminary Objection but is unable to point out the law he is relying on.  Yet a preliminary objection is always based on law and raised pure point of law.

The Plaintiffs intimated intention to withdraw the suit vide a notice of withdrawal dated 22/1/2018.  The counsel for the Defendant caused the matter to come up for mention in Court first to formalize the withdrawal and second to get directions form court on the issue of costs.  The court has not yet marked the matter withdrawn yet and it is therefore a mis-apprehension on the part of the interested party to treat the matter as withdrawn.  The fact of the matter is that the matter still exists until marked withdrawn.

But even assuming that the court had marked it withdrawn, the issue of costs would still arise and the matter would still have to come up in court so that directions on costs can be given.  It is not true to say that counsel needed to make a formal application to reinstate the suit.  Counsel was perfectly in order to cause the matter to be mentioned in court for directions.

In the premises, the interested party is wrong both in his appreciation of facts and his understanding of law.  The Preliminary Objection herein is found unmeritorious and is dismissed with costs to the Defendant.

Right of Appeal in 30 days.

A. K. KANIARU - JUDGE

7/5/2018

In the Presence of:

1st Plaintiff: …………….……..……………..………..….…………

2nd Plaintiff: …………….……..……………..………..….…………

3rd Plaintiff: …………….……..……………..………..….…………

4th Interested Party: …………….……..…..………..….…………

1st Defendant: …………….………...………..………..……………

2nd Defendant: …………….………...………..………..……………

3rd Defendant: …………….………...………..………..……………

Counsel of Plaintiff: ………………..……..……..…………………

Counsel of Defendant: ………..………………..……..….………