[2024] KEELC 13752 (KLR)
The court held that the consent order entered on 12th June 2023 between the applicant and the respondents, which granted a vesting order in favour of Patrick Omondi Opiyo for Plot No. 1960 Mombasa/Likoni Settlement Scheme, remains valid and binding as it has not been set aside or varied. The interested party, though...
Source-derived case information.
- Citation
- [2024] KEELC 13752 (KLR)
- Parties
- Applicant: Patrick Omondi Opiyo; Respondent: Registrar of Land; Respondent: Land Adjudication Officer Waitiki Settlement Scheme; Appellant: John Abura Oucho
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 121 of 2022
- Procedural Posture
- Originating Summons / Ruling on Application for Vesting Order and Challenge by Interested Party
- Outcome
- Application by interested party to set aside consent order and dismiss originating summons is declined; consent order stands; matter remains settled.
- Judges
- NA Matheka
- Legal Topics
- Vesting Orders, Consent Judgments, Land Adjudication, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Omondi Opiyo
Applicant
Registrar of Land
Respondent
Land Adjudication Officer Waitiki Settlement Scheme
Respondent
John Abura Oucho
Appellant
Procedural Posture
Originating Summons / Ruling on Application for Vesting Order and Challenge by Interested Party
Legal Issues
- 1 Whether the court should issue a vesting order declaring the entire freehold interest in Plot No. 1960 Mombasa/Likoni Settlement Scheme to Patrick Omondi Opiyo.
- 2 Whether the consent order entered between the applicant and respondents should be set aside at the instance of the interested party.
- 3 Whether the originating summons should be dismissed with costs as sought by the interested party.
Ratio Decidendi
The court held that the consent order entered on 12th June 2023 between the applicant and the respondents, which granted a vesting order in favour of Patrick Omondi Opiyo for Plot No. 1960 Mombasa/Likoni Settlement Scheme, remains valid and binding as it has not been set aside or varied. The interested party, though enjoined, did not make a formal application to set aside the consent and cannot challenge it through the amended originating summons. The matter was marked as settled, and there is no pending application to alter that position. The court therefore upheld the consent order and declined to entertain the interested party's challenge.
Court Disposition
Application by interested party to set aside consent order and dismiss originating summons is declined; consent order stands; matter remains settled.
Orders
- The vesting order declaring the entire freehold interest in Plot No. 1960 Mombasa/Likoni Settlement Scheme to Patrick Omondi Opiyo stands.
- The matter is marked as settled.
Full Case Text
Judgment text and source record
28 paragraphs
Opiyo v Registrar of Land & another; Oucho (Intended Interested Party) (Environment & Land Case 121 of 2022) [2024] KEELC 13752 (KLR) (11 December 2024) (Ruling)
Neutral citation: [2024] KEELC 13752 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 121 of 2022
NA Matheka, J
December 11, 2024
Between
Patrick Omondi Opiyp
Applicant
and
Registrar of Land
1st Respondent
Land Adjudication Officer Waitiki Settlement Scheme
2nd Respondent
and
John Abura Oucho
Intended Interested Party
Ruling
1. The originating summons is dated 7th February 2023 and is brought under Order 22 and 51 Rule 10 of the Civil Procedure Rules and Section 1A, 2B 314 63(e) of the Civil Procedure Act seeking the following orders; 1. That this Honourable Court do issue a vesting ORDER declaring the entire freehold Interest Plot No. 1960 Mombasa/ Likoni Settlement Scheme in to Patrick Omondi Opiyo.
2. That an irregular allocation of the said plot to another person be declared null and avoid.
3. That costs of this application be provided for.
2. It on is grounded on the annexed affidavit of Patrick Omondi Opiyo and grounds that in the year 2009, a claim was filed in ELC No. 2921 of 2009 by one John Abura Oucho against Patrick Omondi Opiyo alleging that he purchased land Plot No. 1960 Mombasa /Likoni settlement scheme from Patrick Omondi Opiyo. That the matter proceeded for hearing and during the pendency of the case the disputed plots were not assigned to anybody including Scheme Plot No. 1960 Mombasa/Likoni Settlement Scheme until the dispute was resolved or judgment delivered by the Court. That on 26th March 2022 the Court delivered judgment and the Court Oder John Abura Oucho to return the documents for ownership Settlement Scheme Plot No. 1960 Mombasa/Likoni settlement scheme to Patrick Omondi Opiyo. That since the Plot No. 1960 Mombasa/Likoni Settlement Scheme had not been assigned to any one due to the dispute it's only just that the said plot No. 1960 Mombasa/Likoni Settlement Scheme be vested in the name of Patrick Omondi Opiyo by the land adjudication Officer Mombasa and the Registrar of title. That the Applicant hereby applies to this Honourable Court that the said Plot No. 76 Plot No. 1960 Mombasa/Likoni settlement scheme be vested to him.
3. The interest party submitted that confirms that a consent was entered in this matter and the applicant was issued with the lease title. That at the time of eviction the interested party was in possession and that is when he learnt of the court proceedings. He then applied to be enjoined in the suit and file his pleadings. That he has demonstrated that he is the legal owner. That the consent order be set aside and the originating summons be dismissed with costs.
4. I have perused the court file and find that on the 12th June 2023 this court entered a consent between the plaintiff Patrick Omondi Opiyo and the respondents Registrar of land and Land Adjudication Ofiicer Waitiki Settlement Scheme in terms of prayer 1 which stated as follows;1. That this Honourable Court do isuue a vesting order declaring the entire freehold interest plot No. 1960 Mombasa/Likoni Settlement Scheme to Parick Omondi Opiyo.2. That the matter be marked as settled.
5. By an application dated 21st February 2024 the Interested party sought to be enjoined and the court granted the same and allowed him to file his pleadings. The interest party never applied to set aside the said consent and the same still stands. It would be un procedural to try to argue the same within the amended originating summons as the same has already been settled and closed. I find that the interested party ought to move this court appropriately as there is no pending application before me. I find that the amended originating summons was granted in terms of prayer I and the matter was marked settled. That order has not been varied or set aside and still stands.
6. It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024. N.A. MATHEKAJUDGE