[2023] KEELC 22103 (KLR)

Ondiek v Orangi (Enviromental and Land Originating Summons 49 of 2021) [2023] KEELC 22103 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEELC 22103 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Enviromental and Land Originating Summons 49 of 2021

MN Kullow, J

November 29, 2023

Between

Gideon Okumu Ondiek

Plaintiff

and

Joash Odhiambo Orangi

Defendant

Judgment

1. The Plaintiff herein commenced this suit by way of an Originating Summons dated 20th December, 2021 against the Defendant seeking the following Orders: -i.The Plaintiff/ Applicant has met all and singular requirements for the declaration of extinction of the registered proprietor’s rights and/or interests in the said parcel of land and for a further declaration that the said interests be registered in the name of Gideon Okumu Ondiek or in his favour.ii.The names of Joash Odhiambo Orangi be deleted from the register and in its place, the name Gideon Okumu Ondiek be inserted as the owner and proprietor of all that parcel of land known as Suna East/ Wasweta I/20368. iii.The District Land Registrar to cancel all the sub-divisions arising from land known as Suna East/ Wasweta I/20368 and reverting it to its official state.iv.the District Land Registrar should be ordered to alter the register to reflect Gideon Okumu Ondiek as the registered owner and proprietor of the said parcel of land forthwith.v.The Deputy Registrar to execute the Transfer forms and consent documents in place of the Defendant/ Respondent.vi.The Defendant/ Respondent should bear the costs of this suit.

2. The Originating Summons is premised on 5 grounds thereon and on the Plaintiff’s Supporting Affidavit sworn on even date. He deponed that his late father bought a portion of land L.R. No. Suna East/ Wasweta I/361 measuring approx. 5 ½ Acres from one Harrison Agure, vide a sale agreement dated 27/2/1979. His father later bought an additional portion of the land measuring 3 Acres from the Respondent herein thus making a total of 8 ½ Acres.

3. It was his contention that at the time of the said sale to his late father, the original title number L.R. No. Suna East/ Wasweta I/361 was still registered in the name of Lazaro Maende, who was deceased at the time and was the father of both the Respondent and Harrison Agure. However, sometimes around 12/08/1980, the original parcel of land No. 361 was registered in the names of Yukabet Kotingo (who is the Respondent’s mother), Harrison Agure, Ondeje Lazaro Maende and Joash Odhiambo (Respondent herein), through succession; with each of them holding a ¼ share of the total 38. 0 Ha. He thus averred that his father was entitled to the share registered in the name of Harrison Agure and that of Yukabet Kotingo which had been sold by the Respondent. Harrison Agure unfortunately died without appearing before the Land Control Board and obtaining the requisite Consent to transfer the 5 ½ Acre portion sold while the Respondent also declined to appear before the Land Control Board with his late father until the demise of his father on 13/04/2006.

4. Upon the said purchase; his late father took immediate possession and occupation of a portion of the suit land measuring approx. 8 ½ Acres, he established their home in the year 1979 which home still exists to date and they still occupy the same. He further contended that on the demise of both his parents, they were buried on the said homestead. This fact was later confirmed by the area Chief Ngege Location vide a meeting held and attended by 17 village elders from the same location whose conclusion was that his late father indeed purchased the suit land in the year 1979.

5. Further, he deposed that the original suit land No. 361 has since been subdivided into several other portions giving rise to new parcel numbers to wit; on 19/9/2007, the original land was subdivided into 2 parcels, 14360 registered in the name of the Respondent and 14363. Parcel No. 14360 was again subdivided into 2 portions; No. 20368 measuring approx. 17. 51 and another portion which is occupied by the Respondent. Parcel No. 20368 was then subdivided into 4 portions; Nos. 20416, 20417, 20418 and 20419 whereupon he averred that their home falls on all the 4 portions. His claim is therefore over parcel No. Suna East/ Wasweta I/ 20368.

6. Parcel No. 20416 was later subdivided into parcel Nos. 22854, 22855, 22856, 22857 and 22858 which all measure approx. 1. 60Ha.

7. He thus maintained that the 8 ½ Acres purchased by his father and where their home is constructed, lies on title No. Suna East/ Wasweta I/20368, which was registered in the name of the Respondent. He urged the court to cancel all the subdivisions resulting from title No. 20368 and restore the title to his name by deleting the name of the Respondent therefrom.

8. The Respondent entered Appearance through the firm of Sam Onyango & Co. Advocates and filed a Replying Affidavit sworn on 20th June, 2022. He confirmed that the suit parcel No. Suna East/ Wasweta I/20368 is registered in his name but denied the claims levelled against him. He dismissed the Plaintiff’s suit as being res judicata and offending the express provisions of section 7 of the Civil Procedure Act. It was his claim that there is a previous suit which was commenced before this court vide ELC No. 70 of 2017, the same was subsequently transferred to the Chief Magistrates Court at Migori vide CMCC No. 37 of 2019; where the matter was heard and finally determined.

9. It was his contention that the plaintiffs in the previous suit are brothers to the plaintiff in the instant suit and in both suits they sued on behalf of the dependants of their late father Joshua Ondiek Maginga. Further, the issues now proposed for determination in the instant suit are substantially the same as the issues that were determined or ought to have been raised and determined in the former suit.

10. It was also his claim that the suit parcel No. 20368 was a subdivision of parcel No. 14360, which had an acreage of 17. 51Ha and which is in excess of the alleged 8 ½ Acres claimed by the Plaintiff. He thus maintained that the Plaintiff is wilfully misleading the court by asking the court to transfer the whole of parcel No. 20368 which is in excess of the 8 ½ Acres which is pleaded.

11. He further contended that the Plaintiff has never been in actual, open, peaceful, uninterrupted and continuous possession and occupation of the suit land or any portion thereof. He averred that the structures exhibited and marked “GAO 5” in the Supporting Affidavit are not erected on the suit land No. 20368 or any portion thereof.

12. It was also his assertion that he was under no obligation to attend the Land Control Board for purposes of processing the Consent to transfer his land parcel to the plaintiff’s father, who had not secured an interest in his land capable of registration. He further argued that the conduct of a funeral service at a particular place does not confer any proprietary rights over the alleged parcel of land and cannot be used to denote possession and occupation. He denied the claims of sale and maintained that he never sold any portion of his land to the plaintiff’s father as he had no capacity to transact in the alleged matter at their material time.

13. In conclusion, it was his contention that the Plaintiff’s claim does not meet the threshold for the grant for the prayers sought and is thus incompetent and unmeritorious and asked the court to dismiss the suit with costs.

TRIAL 14. The Plaintiff’s case proceeded for hearing on 31. 1.2023. The Plaintiff testified as PW1 and called 2 witnesses in support of his case. He adopted his supporting affidavit sworn on 20/12/21 and the witness statement evenly dated as his evidence in chief.

15. He also produced the documents as Plaintiff Exhibits marked 1 – 10, even though on a perusal of the Supporting Affidavit there were only 9 annexures and thus the same are marked as PExhibits 1 – 9 as follows: - Copy of the Chief’s letter dated 26/7/2021 and Limited Grant of Administration Ad Litem issued on 05/10/2021 as Pexh. 1 (a & b), copy of the Agreement of sale of land dated 27/2/1979 as Pexh. 2, copy of the Agreement of sale of land dated 2/12/1981 as Pexh. 3, copy of the Green card for Title No. 361 as Pexh. 4, bundle of photographs of their home as Pexh. 5, photographs of his father’s funeral at their home and certificate of death as Pexh. 6, copy of the Green Card for Title No. 20368 as Pexh. 7, copies of Green Cards as Pexh. 8, copy of the minutes of the meeting as Pexh. 9. He thereafter urged the court to grant the orders sought in his Originating Summons.

16. On cross- examination, he confirmed that Reuben Ondiek and Aggrey Omondi are his brothers and that he is aware that they filed a suit a court but denied that the same was over the same parcel of land. He reiterated that his claim is over the suit parcel No. 20368 measuring 8 ½ Acres. He conceded that the entire suit land measures approx. 17. 8 Ha but his claim is only over a portion measuring 8 ½ Acres and not the entire land.

17. It was also his testimony that his late father purchased the land in various portions totalling to 8 ½ Acres. He also conceded that he did not engage the services of a surveyor before filing the instant suit.

18. He maintained that he had produced various photographs to show the activities being carried out on the land and the same show that they are still in possession of the land. He testified that he was born on the suit land, when both his father and mother died they were buried on the same land and further that they have been cultivating the land all through. He confirmed that he is aware that the suit land was subdivided into several portions but restated that they have been using parcel No. 20368.

19. On re-examination he clarified that he they have lived on the suit land for over 43 years and the same is clearly marked.

20. Agneta Anyango testified as PW2, she adopted her witness statement as her evidence in chief. On cross- examination, it was her testimony that the Plaintiff’s father bought the suit land from Plista Aoko and not Joshua Orangi nor Harrison Agure. On re-examination she clarified that the Plaintiff’s father bought land measuring approx. 8 ½ Acres in total and was given possession.

21. Joaness Odira testified as PW3, he adopted his witness statement dated 25. 10. 22 as his evidence and testimony in chief. On cross- examination, he conceded that he was present during the transaction but he did not sign the same as a witness.

22. He however stated that the land was sold by one Plista Aoko Orangi and the same measured 8 ½ Acres in total and that the purchase price was paid in full. On re-examination he clarified that the land was clearly demarcated. The Plaintiff thereafter closed their case.

23. The Defence case proceeded for hearing on 11/7/2023, the Defendant testified as DW1, he did not call any witness. He adopted and relied on his Replying Affidavit dated 29. 6.2022 as his evidence in chief.

24. He also produced the documents annexed to his Replying Affidavit as Defence exhibits 1 – 4 as follow; copy of Plaint in ELC Case No. 70 of 2017 as Dexh. 1, copy of Statement of Defence in ELC Case No. 70 of 2017as Dexh. 2, copy of proceedings in Migori CMCC No. 37 of 2019 as Dexh. 3 and copy of Decree in Migori CMCC No. 37 of 2019 as Dexh. 4. He thereafter urged the court to dismiss the Plaintiff’s case with costs since the matter was already heard and determined.

25. On cross-examination; he stated that the original parcel was No. Suna East/ Wasweta I/ 361 and the same was registered in the name of his late father and eventually to his family. He denied that the suit land was sold to Joash Ondiek but conceded that the family of the plaintiff previously lived on the original land parcel No. Suna East/ Wasweta I/361.

26. It was his testimony that they instituted succession proceedings sometimes in the year 1977 and the original suit land was sub-divided and registered in the names of 4 people. He however denied knowledge of any sale of land agreement to the Plaintiff’s father of the 3 Acres or at all.

27. He however conceded that he is aware that the Plaintiff took possession of a portion of the suit land measuring 1 Acre and that the same was for free, to enable the Plaintiff construct a homestead. He further stated that the original suit land was subdivided into several other portions. Parcel No. 1436 was further subdivided into 20368, which was later subdivided into 4 portions and which are all registered in his name. It was his contention that the Plaintiff only occupies an Acre of his land.

28. In his testimony, he confirmed that the Plaintiff have lived on the suit land but maintained that he is not in occupation of 8 Acres as alleged.

29. On re-examination, he stated that his signature does not appear on the agreement and further that his identity card number is also not indicated.

30. Upon close of the defence case, I issued directions on the filing of submissions. Both parties filed their rival submissions and authorities which I have read and considered.

Analysis and Determination 31. I have reviewed the pleadings herein, the respective exhibits and parties’ rival submissions in totality and it is my considered opinion that the following issues arise for determination: -a.Whether the suit as filed is Res Judicata.b.Whether the Plaintiff has sufficiently proved his claim on Adverse Possession.c.Whether the Plaintiff is entitled to the reliefs sought.

I. Whether the suit as filed is res judicata 32. It is the Defendant’s claim that the suit as filed is res judicata, contrary to the provision of section 7 of the Civil Procedure Act, on account of the previous suit which was commenced before this court vide ELC No. 70 of 2017, the same was subsequently transferred to the Chief Magistrates Court at Migori vide CMCC No. 37 of 2019; where the matter was heard and finally determined. He annexed a copy of the pleadings in the subordinate court, proceedings and the Judgment of the trial court.

33. He maintained that the issues in dispute in the instant case had already been heard and determined in the previous suit and thus this court has no jurisdiction to entertain the claim as filed against them.

34. The Plaintiff on the other hand averred that even though the previous suit was filed in respect of the same subject land, the issue of adverse possession which is in dispute in the instant case was never raised and/or determined by the trial court in Migori CMELC No. 37 of 2019. He thus urged the court to disregard the claims of res judicata and determine the suit on merit.

35. The doctrine of res judicata is provided under section 7 of the Civil Procedure Act and which defines res judicata as follows: -“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

36. From the above section, the salient features that must be demonstrated in a claim of res judicata are that; the matter that is directly and substantially in issue in the instant suit must have been directly and substantially in issue in a former suit and the same has been heard and finally determined by a competent court. The same must be between the same parties over the same subject matter.

37. The test for determining the application of the doctrine of res-judicata in any given case is spelt out under section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:“(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

38. With these principles in mind, I will proceed to carefully and critically analyze the pleadings, proceedings and the judgment in Migori CMELC No. 37 of 2019 viz-a-viz the claim in the instant suit in order to ascertain whether the instant suit is res judicata.

39. The first limb on the parties litigating in both suits is settled. In both suits, the plaintiffs who instituted the suit did so on behalf of the estate of their late father and his beneficiaries/ dependants. The defendant in both suits is the same. There is therefore no dispute with regard to this.

40. What however appears to be in dispute is on the matters which were directly and substantially in issue in the former suit are the same as the matters directly and substantially in issue in the instant suit and whether the same were heard and finally determined on merit by a court of competent jurisdiction.

41. I have keenly looked at the pleadings, proceedings and the judgment in the previous suit. In the former suit, the main issue in dispute was on trespass and whether the plaintiffs therein legally purchased the suit land from the Defendant therein. The instant suit on the other hand is primarily on the issue of adverse possession, owing to the plaintiff’s occupation and use of a portion of the suit land measuring approx. 8 ½ Acres.

42. Further, the judgment in the previous suit only touched on the alleged trespass, the issue of the sale of the suit land and the alleged sale agreements. The same did not address the issue of adverse possession on merit or at all.

43. As stated in the Maina Kiai case (supra), all the elements of res judicata must be proved conjunctively. In the premises therefore, I accordingly find that the instant suit is not res judicata; the issues directly and substantially in dispute in the instant suit were not the same as the issues that were directly and substantially in dispute in the previous suit Migori CMELC No. 37 of 2019 and further the same were never heard and finally determined on merit in the previous suit.

44. I will therefore proceed to determine the instant suit on merit as hereunder;

II. Whether the Plaintiff has sufficiently proved his claim on Adverse Possession 45. Sections 7,13, 17 and 38 (1) and (2) of the Limitation of Actions Act and Section 28 (h) of the Land Registration Act provides the statutory framework for the doctrine of adverse possession.

46. Makhandia, JA in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR in describing the doctrine of adverse possession held as follows: -“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, it is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act……”

47. The requirements for a claim of adverse possession are now well settled; The land in question must be registered in the name of a person other than the Applicant, the Applicant must then demonstrate that his possession and occupation of the said land was not by force or under the licence of the land owner and that the said possession was open, in continuity for an uninterrupted period of over 12 years. Lastly, the Applicant must demonstrate that he took possession of the parcel of land, asserted his rights over it in an adverse manner to the title of the land owner and the said title holder did not take any precipitate action against the said Applicant for a period of 12 years.

48. With regards to the possession; the Plaintiff must establish the date he took possession, the nature of his possession, the duration of his possession and whether the same was open and uninterrupted for the 12 years’ statutory period. See Court of Appeal decision in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR)

49. The first ground to be proved is that the suit land must be registered in the name of a person other than the Plaintiff. The registration of the suit land is not in dispute. The Plaintiff produced various copies of Green Card to prove the ownership of the suit land and in support of the various subdivisions effected on the original parcel No. 361 and on the suit land No. 20368 as Pexh. 4, 7 and 8 in support of his case. To this end, I find that this limb had been sufficiently demonstrated. This fact was further confirmed by the Defendant in his Replying Affidavit and testimony in court.

50. Subsequently, the question that follows and which is at the core of the claim herein is the issue of possession and use of the suit land. The Plaintiff is duty bound to demonstrate the duration and nature of his possession and whether owing to the said possession he acquired prescriptive and overriding rights capable of registration.

51. The Plaintiff contends that they took possession of the suit land in the year 1979 pursuant to 2 sale transactions; the initial sale was of a portion measuring 5 ½ Acres between his late father and one Harrison Agure and the other sale transaction was between his late father and the defendant herein for a portion measuring 3 Acres thus making the entire suit land 8 ½ Acres in total. The Defendant denied the said sale transactions and maintained that he has ever sold any portion of land to the Plaintiff or his deceased father.

52. It is trite that in a claim for adverse possession, possession must not be consensual or permissive or under a licence of the land owner. Pexh. 2 and 3 therefore signifies that the Plaintiff’s entry into the suit land was by the consent and permission of the land owner. However, this court will not delve into the validity of the said sale agreements since the same is not an issue for determination in the instant claim for adverse possession and this court will only refer to the same as proof of the Plaintiff’s entry into the suit land.

53. Permissive possession is inconsistent with adverse possession; thus, the onus is on the Plaintiff to demonstrate how and when his possession ceased to be permissive and became adverse. The court in the case of Jandu v Kirpal [1975] EA 225 held that possession will only become adverse after the end of the period for which permission to occupy has been granted.

54. Guided by the decision above; I am of the considered view that even though the Plaintiff’s entry into the suit land was by consent and with the permission of the actual land owners, time for adverse possession started to run upon the expiry of the license/ contract period.

55. In the instant case, the sale agreements were entered into in the year 1979, parties therein failed to attend the Land Control Board for purposes of obtaining the requisite Consent within the strict timelines of 6 months as statutorily required at the time (1979). Both the Plaintiff’s father and Harrison Agure died before effecting the said transfer of the purchased portion. Further, the contract period lapsed by the end of 6 years. It is therefore my finding that the time for adverse possession started running upon the lapse of 6 months for failure to obtain the requisite LCB Consent and became adverse in the year 1992.

56. Further and without prejudice to the foregoing, time for adverse may also have started running after the end of the 6 years contract period and his open, continued and uninterrupted occupation and use of the land became adverse in the year 1997.

57. There was no evidence by the Defendant of any steps taken to interrupt the Plaintiff’s family occupation and use of the portion of the suit land or an Order of their eviction from the said parcel. It is therefore evident that the Plaintiff’s occupation and use of the portion of the suit land was continuous and at the time of filing the suit herein, the Plaintiff and his family had used the suit land for a period of over 40 years which period is in excess of the 12 years’ statutory period.

58. Lastly, the Plaintiff need to demonstrate whether the said possession and use of the suit land was adverse to the rights of the Defendant over the same land. What amounts to dispossession in a claim for adverse possession has been held to be acts done by the adverse possessor which are inconsistent with the true owner’s enjoyment of the soil for the purpose for which he intended to use the same. See Court of Appeal decision in Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another [2015] eKLR)

59. The Plaintiff produced Pexh. 5, bundle of photographs of their homestead on the suit land, as proof of their occupation and use of the suit land and Pexh. 6 which were pictures of his father’s funeral on the suit land.

60. The Defendant in his pleadings contended that the Plaintiff and his father have never been in possession or occupation of any portion of the suit land at all. He further dismissed the funeral photographs as not accruing any proprietary rights over the suit land and that the same are just a show that there was a funeral. However, during cross-examination he conceded that the Plaintiff and his family previously occupied the original parcel of land No. 361 and further that they only occupy 1 Acre of the suit land and not the 8 ½ Acres as alleged and they are still in occupation of the 1 Acre to date.

61. The Defendant has given 3 different and contradictory accounts of the Plaintiff’s possession and occupation of the suit land and this court is therefore at a cross-road on which is actually the correct position. Be as it may, even with the conflicting accounts and narration of the said occupation and use, the defendant did not challenge and/or controvert Pexh. 5 and 6 as produced by the Plaintiff in support of his occupation and use claims. Further, there was no evidence by the Defendant of the precipitate action taken to evict the Plaintiff or his family or even to interrupt his occupation and use thereof.

62. In the absence of any contrary proof, I find that Pexh.5 and 6 are the actual reflection of the status of the suit land and the same confirms that the Plaintiff is in actual possession of the suit land. Moreover, PW2 and PW3 confirmed the Plaintiff’s entry and use of the portion of land measuring 8 ½ Acres that was purchased by the Plaintiff’s late father.

63. Adverse possession is a fact to be observed upon the land and not on the title. Thus, even though the original land No. 361 has since been subdivided and registered in the name of the Defendant and there has been further subdivisions of the suit land No. 20368 into several other portion as evident in the Green Card produced as Pexh. 7 and 8; the said subdivisions and registrations did not affect and/or interrupt the Plaintiff’s use and rights over the said land.

64. The totality of the foregoing is that the Plaintiff has sufficiently demonstrated that he has acquired prescriptive rights over the portion of the suit parcel measuring 8 ½ Acres by virtue of his family’s occupation and use of the said portion. Therefore, it is my finding that the Plaintiff has proved his claim on a balance of probabilities and I accordingly find that he is entitled to the reliefs sought in his Originating Summons.

Conclusion 65. The upshot of the above is that the Plaintiff has proved his claim against the Defendant to the required standard and I accordingly allow the Originating Summons dated 20th December, 2021 on the following terms;i.A Declaration be and is hereby made that the Plaintiff has acquired by Adverse Possession a portion of the suit parcel measuring approx. 8½ Acres. The rights and interests of the registered proprietor thereof has been extinguished and a further declaration is hereby made that the interests over the said portion of the suit parcel be registered in favour of the Plaintiff.ii.An Order be and is hereby made that the names of Joash Odhiambo Orangi be deleted/cancelled from the register and in its place, the name Gideon Okumu Ondiek be inserted as the owner and proprietor of a portion of the parcel of land known as Suna East/ Wasweta I/20368 measuring 8 ½ Acres.iii.Further an Order is hereby made directed to the District Land Registrar to cancel all the sub-divisions arising from land known as Suna East/ Wasweta I/20368 and reverting it to its official state.iv.Consequently, the Land Registrar is hereby ordered and/or directed to effect the necessary changes on the register to reflect the name Gideon Okumu Ondiek as the registered owner and proprietor of a portion of the said parcel of land within a period of 60 days from the date of this judgment.v.The Defendant is hereby ordered and/or directed to execute the necessary transfer instruments for purposes of the said registration in favour of the Plaintiff within a period of 45 days from the date of this Judgment. In default thereof, the Deputy Registrar is hereby directed to execute the Transfer forms and consent documents in place of the Defendant/ Respondent for purposes of effecting the registration of a portion of the suit parcel No Suna East/ Wasweta I/20368, measuring approx. 8 ½ Acres in favour of the Plaintiff.vi.The costs of the suit to be borne by the Defendant.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI ON 29TH DAY OF NOVEMBER, 2023. MOHAMMED N. KULLOWJUDGEIn presence of; -No Appearance for the PlaintiffNo Appearance for the DefendantCourt Assistant - Tom Maurice/Victor