[2017] KEELC 2696 (KLR)
The court found that the parties had freely entered into a consent agreement settling all issues in dispute regarding Plot No. 31 Gekomu Market. The consent provided for payment of Kshs. 2,000,000 by the defendants to the plaintiff in exchange for the plaintiff relinquishing all claims to the property. The court,...
Source-derived case information.
- Citation
- [2017] KEELC 2696 (KLR)
- Parties
- Plaintiff: Kennedy Moseti Momanyi; Defendant: Gilta Investment Co. Ltd; Defendant: Dr. Anal Ratilal Tailor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2015
- Procedural Posture
- Land and Property Suit / Judgment After Consent Settlement
- Outcome
- Suit marked as fully settled by consent; judgment entered in terms of consent.
- Legal Topics
- Ownership Disputes, Consent Judgment, Registration of Title, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Moseti Momanyi
Plaintiff
Gilta Investment Co. Ltd
Defendant
Dr. Anal Ratilal Tailor
Defendant
Procedural Posture
Land and Property Suit / Judgment After Consent Settlement
Legal Issues
- 1 Whether the defendants' acquisition and registration of Plot No. 31 Gekomu Market was wrongful and should be cancelled.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with the property.
- 3 Whether the consent agreement between the parties should be adopted as the judgment of the court.
Ratio Decidendi
The court found that the parties had freely entered into a consent agreement settling all issues in dispute regarding Plot No. 31 Gekomu Market. The consent provided for payment of Kshs. 2,000,000 by the defendants to the plaintiff in exchange for the plaintiff relinquishing all claims to the property. The court, recognizing the importance of alternative dispute resolution under Article 159(2)(c) of the Constitution and Section 20 of the Environment and Land Court Act, adopted the consent as the judgment of the court. The matter was marked as fully settled, and costs were to be paid as agreed in the consent, in line with the principle that costs follow the event and at the court's...
Court Disposition
Suit marked as fully settled by consent; judgment entered in terms of consent.
Orders
- Defendants to pay the plaintiff Kshs. 2,000,000 as agreed value of share in Plot No. 31 Gekomu Market.
- Defendants to retain the subject property; plaintiff relinquishes all claims thereto.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT KISII
CASE NO. 16 OF 2015
KENNEDY MOSETI MOMANYI ……...……….......……………………….. PLAINTIFF
VERSUS
GILTA INVESTMENT CO. LTD …….…………………..…..……….. 1ST DEFENDANT
DR. ANAL RATILAL TAILOR …………………………………...…. 2ND DEFENDANT
JUDGMENT
1. By a plaint dated 20th December, 2014 the plaintiff who is represented by Mr. Nyatundo Advocate, seeks against the defendant the following orders:
(a) An order that the defendants’ purported acquisition of ownership of Plot No. 31 Gekomu Market is wrongful, unlawful, null and void ab initio.
(b) An order that the defendants’ purported registration as owner(s) be cancelled unconditionally and the record do revert to show the name of the deceased Joseph Momanyi Nyaruri.
(c) An order of injunction permanently restraining the defendants, their agents, servants, successors/heirs and/or assigns from claiming, trespassing upon or interfering with the deceased’s estate (plaintiff’s) ownership, possession and/or enjoyment of his half share in said Plot No. 31 Gekomu Market.
(d) Costs and interest.
2. The plaintiff’s claim is in respect of ownership of Plot No. 31 Gekomu Market within Kisii Town. It measures approximately 50ft by 100ft in size. The plot was owned by Joseph Momanyi Nyaruri and Migeta Mangoa (both deceased). The defendants denied the plaintiff’s claim in their defence dated 16th February 2015.
3. This suit is fixed for mention today to confirm settlement of the matter. Mr. Nyatundo counsel for the plaintiff and Mr. Soire for the defendant have referred the court to consent Ref No. C/DMN/086/2014dated 25th February, 2015. It is in the following terms:-
“(1) That the defendants do jointly and severally pay the plaintiffs a sum of kshs.2,000,000/= (Kshs.2Million only) being the agreed value of their share in Plot No. 31 Gekomu Market;
(2) That the defendants do accordingly keep the subject property and the plaintiff’s hereby absolutely relinquish their claim(s) thereto on behalf of their deceased father’s estate and on their own behalf.
(3) That the defendants do pay the plaintiff’s costs for the suit, to be taxed, if not agreed.
(4) That the plaintiffs hereby acknowledge receipt of Kshs.2Million in satisfaction of 1 above.
(5) That in default, execution do issue.
(6) That upon satisfaction of the above, this matter be marked as fully settled.” (emphasis mine)
4. I have considered the entire pleadings and the written consent signed by the plaintiff’s counsel and defendant’s counsel. I am conscious of Article 159 (2) (c) of the Constitution of Kenya 2010 and Section 20 of the Environment and Land Court Act, 2012 on the promotion of alternative forms of dispute resolution. I note that the consent is relevant thereto.
5. I accordingly adopt the consent dated 25th February 2015 as the Judgment of this court. The dispute is hereby marked as fully settled.
6. The costs follow the event and are at the discretion of the court under the proviso to Section 27(1) of the Civil Procedure Act, Cap 21 Laws of Kenya. I therefore, invoke the decision in Rai –vs- Rai Petition No. 4 of 2012, Supreme Court of Kenya and order that costs abide term No. 3 of the consent in this matter.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
Judgment delivered, signedanddatedin open courtatKisii this16th day of May, 2017.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
In the presence of:
Mr. Nyatundo for the appellant
Mr. Soire for the respondent
Ruth court assistant