Onduru v Alela [2024] KEELC 13692 (KLR)

Onduru v Alela (Environment and Land Appeal E020 of 2024) [2024] KEELC 13692 (KLR) (28 October 2024) (Ruling)

Neutral citation: [2024] KEELC 13692 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment and Land Appeal E020 of 2024

GMA Ongondo, J

October 28, 2024

Between

Brian Omollo Onduru

Appellant

and

Chrles O Odundo Alela

Respondent

Ruling

1. The instant ruling is in respect of an application by way of a Notice of motion dated 3rd October, 2024 by the appellant/applicant, Brian Omollo Onduru through Agure Odero and Company Advocates for orders infra;a.That the honourable court be pleased to grant an order of stay which was issued on 23rd September 2024, which order upheld the one issued on 16/4/2024, pending the hearing and determination of the intended Appeal.b.Cost of this application be borne by the respondentc.Such further and /or other orders be made as the court may deem fit and expedient

2. The grounds of the application are, inter alia;-i.The Ruling delivered on the 23rd day of September 2024, whereby the subordinate court upheld its earlier order of the 16th day of April 2024 that stopped the Applicant herein from working on parcel KAMANGAMBO/KANYAJUO/954,is prejudicial in nature and is in breach of the Lease Agreement thereof.ii.Pursuant to the ruling dated 23/9/2024, the applicant is bound to suffer loss considering the mega project f mining on site and the type of machines thereof.iii.The jurisdiction of the court is in question and it is proper and just that this court issue orders of stay of the trial court order dated 23/9/2024, pending the hearing of the Appeal herein.

3. It is trite law that a party to a case be made aware of the same to elicit any response from that party; see Ogada-vs-Mollin (2009) KLR 620.

4. Clearly, the application was served upon the respondent as revealed in the affidavit of service sworn on 25th October 2024 by Cephas Agure Odero learned counsel for the appellant/applicant. However, the respondent failed to respond to the application.

5. Mr. Agure Odero learned counsel for the applicant has implored the court to grant order number 3 for stay as sought in the application.

6. In the foregone, is the application meritorious to attract the prayer number 3 as stated on the face of the application?

7. This appeal initiated by way of memorandum of appeal dated 3rd October 2024 contains triable issues which include; lease agreement, trespass, jurisdiction of the trial court over the matter.

8. In that regard, the applicant is entitled to have the said issues heard on merit in the spirit of Articles 25 (c), 48 and 50 (1) of the Constitution of Kenya 2010.

9. Moreover, I subscribe to the Court of Appeal decision in the case of Butt vs- Rent Restriction Tribunal (1979) eKLR that;‘……the appellant has an undoubted right of appeal……’

10. I take into account that this court has the mandate to grant interim preservation orders inclusive of the stay sought in the application under section 13 (7) (a) of the Environment and Land Court Act 2015 (2011).

11. Wherefore, the application is firm and meritorious. The same be and is hereby allowed in terms of the order of stay sought therein and as set out in paragraph 1 (a) hereinabove.

12. Costs of the application to abide the outcome of this appeal.

13. It is so ordered.

DATED AND DELIVERED AT MIGORI THIS 28TH DAY OF OCTOBER 2024G. M. A. ONGONDOJUDGEIn Presence of;Mr Agure Odero learned counsel for the appellant/applicantTom- Court Assistant