[2006] KEHC 824 (KLR)
The court found that the plaintiff was declared the owner of the suit land by a consent judgment in 1981, which was never challenged by the defendant. Although the plaintiff delayed in executing the judgment, the defendant did not oppose the current application or contest the original judgment. The court exercised...
Source-derived case information.
- Citation
- [2006] KEHC 824 (KLR)
- Parties
- Plaintiff: Chebalungu Kongasis Trading Company; Defendant: Livingstone Milgo
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 50 of 2006
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- suit allowed; vesting order granted
- Judges
- LK Kimaru
- Legal Topics
- Vesting Order, Limitation of Actions, Execution of Judgment, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chebalungu Kongasis Trading Company
Plaintiff
Livingstone Milgo
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a vesting order in respect of L.R No.7388/133 based on the 1981 consent judgment.
- 2 Whether the plaintiff is barred by limitation from executing the 1981 judgment.
Ratio Decidendi
The court found that the plaintiff was declared the owner of the suit land by a consent judgment in 1981, which was never challenged by the defendant. Although the plaintiff delayed in executing the judgment, the defendant did not oppose the current application or contest the original judgment. The court exercised its discretion to issue a vesting order in favour of the plaintiff, recognizing the validity of the consent judgment and the absence of any opposition or challenge from the defendant. The limitation period for execution was noted, but the court proceeded to grant the vesting order as the underlying right had already been determined by the earlier judgment and the application was...
Court Disposition
suit allowed; vesting order granted
Orders
- A vesting order is issued declaring that all that parcel of land known as L.R No.7388/133 situate within Sotik Township belongs to the plaintiff pursuant to the consent judgment and decree of the Resident Magistrate in Civil Case No.143 of 1980.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Suit 50 of 2006 (OS)
CHEBALUNGU KONGASIS TRADING CO……....................…PLAINTIFF
AND
LIVINGSTONE MILGO………………...................…………...DEFENDANT
JUDGMENT
On the 20th of May 1981, the plaintiff herein Chebalungu Kongasis Trading Company obtained judgment against the defendant Livingstone Milgo in a suit filed before the then Resident Magistrate’s Court at Kericho i.e. Kericho RMCCC. No.143 of 1980. The said judgment was entered by consent on the following terms;
The plaintiff was declared to be the owner of all that parcel of land known as L.R NO.7388/183 situate at Sotik Township. The court further ordered that the title in respect of the said parcel of land be rectified by canceling the entries made therein reflecting at the defendant was the owner of the suit land and in its place be substituted the name of the plaintiff.
It is apparent that the plaintiff took no action to execute the said judgment. The plaintiff did not make any effort to have itself registered as the owner of the said suit land. In accordance with Section 4(4) of the Limitation of Actions Act (Cap.22 of the Laws of Kenya), a successful party may not execute on a judgment after the expiry of twelve years. It is pursuant to this limitation that the plaintiff brought this originating motion before this court to have this court adopt the judgment which was entered in its favour by the Resident Magistrate, Kericho in 1981 and issue a Vesting Order thereto. The plaintiff did not indicate under which section of the law it was filing the said originating motion. Having perused Order XXXVI rule 1(f) of the Civil Procedure Rules, I suppose the plaintiff wanted this court to endorse the compromise of the said suit between itself and the defendant.
The defendant was duly served with the originating motion. He acknowledged receipt of the summons. An affidavit of service has been filed indicating that the defendant was duly served. By the time of the hearing of this suit, the defendant had not entered appearance nor filed any pleadings in opposition of the originating motion. The originating motion was therefore unopposed. From the proceedings before the Resident Magistrate’s Court, Kericho in 1981 in the suit mentioned hereinabove, it is clear that the respondent did not challenge the suit filed by the plaintiff. In fact he entered into a consent order with the plaintiff to have the suit filed against him by the plaintiff allowed with no orders as to costs. I will therefore allow the suit filed by the plaintiff herein. I hereby issue a vesting order declaring that all that parcel of land known as L.R No.7388/133 situate within Sotik Township and which had been declared to belong to the plaintiff pursuant to the consent judgment and decree of the Resident Magistrate in Civil Case No.143 of 1980.
Since the defendant did not enter appearance or file any pleadings in opposition to this originating summons, there shall be no orders as to costs.
DATED at KERICHO this 2nd day of November 2006
L. KIMARU
JUDGE