Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee) v Oloo & 3 others [2023] KEELC 21477 (KLR)

Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee) v Oloo & 3 others (Environment and Land Appeal E003 of 2023) [2023] KEELC 21477 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21477 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment and Land Appeal E003 of 2023

GMA Ongondo, J

November 9, 2023

Between

Elizabeth Wanjiku Ogola (Suing as Done on Behalf of Oliver Owuor Tambo (Donee)

Plaintiff

and

Lawrence Ochieng Oloo

1st Defendant

Ogada Osuta

2nd Defendant

Auma Adek Okech

3rd Defendant

Jim Otieno

4th Defendant

(Being an appeal from the judgment of the Principal Magistrate Court at Ndhiwa in PMC. ELC E008 OF 2021 delivered by Hon. ONZERE E.M. Principal Magistrate on 15th December 2022)

Ruling

1. By a notice of Preliminary Objection duly filed herein, the 4th respondent through Ongoso Ayama and Company Advocates is seeking that this appeal should be dismissed with costs on the following grounds;a.The appeal offends provisions of sections 79G of the Civil Procedure Act.b.The appeal offends order 43 rule (3) of the Civil Procedure Rules, 2010. c.The appeal offends Order 43 Rule (4) of the Civil Procedure Rules, 2010.

2. The appeal was commenced by a memorandum of appeal dated 17th December 2023. The grounds thereof are set out on the said memorandum.

3. On 8th November 2023, the 4th respondent’s counsel filed a notice of withdrawal of the said preliminary objection.

4. Ms. L.K Obwanda learned counsel for the appellant as well as Ms. Akinyi instructed by Quinter Adoyo learned counsel for the 1st and 3rd respondents, have no objection to the withdrawal of the preliminary objection.

5. This court is aware that a preliminary objection must be on points of law and may dispose of a suit; see Mukisa Biscuit Manufacturing Company Limited versus West End Distributors Limited (1969) EA 696 at 700.

6. The 4th respondent has the right to withdraw the preliminary objection. The withdrawal is merited in this circumstance.

7. In the result, the notice of preliminary be and is hereby marked as withdrawn as sought by the 4th respondent with no orders as to costs.

8. It is so ordered.

DELIVERED, DATED AND SIGNED AT HOMABAY THIS 9TH DAY OF NOVEMBER 2023. G.M.A ONG’ONDOJUDGE1. L.K Obwanda holding brief for Kuke learned counsel for appellant.2. Ms Akinyi holding brief for Adoyo learned counsel for 1st and 3rd Respondents.3. Mr. Ongoso learned counsel for 4th Respondent.