[2016] KEELC 1100 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

CIVIL CASE NO. 1327 OF 2007

PRECAST PORTAL STRUCUTRES LIMITED...............................PLAINTIFF

VERSUS

RICCARDO LIZZIER.............................................................1ST DEFENDANT

PEETRO LANGUI.................................................................2ND DEFENDANT

IVREA GROUP......................................................................3RD DEFENDANT

CATHOLIC DIOCESE OF NAIROBI.....................................4TH DEFENDANT

RULING

Through amended plaint dated 30th March, 2005, the Plaintiff sought the following reliefs against the defendants:

a. An injunction to restrain the defendants, their servants and or agents from constructing, developing, trespassing, selling, transferring, giving in exchange, charging or in any other way encumbering or utilizing land reference number 15314/10 Kamiti road Nairobi.

b. A declaration that the Plaintiff is the sole legal and beneficial owner of LR. Number 15314/10 Kamiti road Nairobi.

c. A declaration that the transfer of Land reference Number 15314/10 Kamiti to the 3rd defendant is fraudulent and/or irregular.

d. An order for cancellation of certificate of title I.R 93733 being the title document for L.R Number 15314/10.

e. An order compelling the defendants to transfer land reference number 15314/10 to the Plaintiff forthwith.

f. An injunction to restrain the 1st and 2nd defendants from evicting, harassing, threatening to evict, trespassing onto or in any other way interfering with the Plaintiff’s occupation and quiet enjoyment of land reference number 15314/10 Kamiti road Nairobi.

g. An order that the Plaintiff do deposit the monthly rent of Kshs.5,000/= into an interest earning account in the name of the advocates on record for the parties herein.

h. In the alternative to (a) (b) (c) (d) (e) above

ALTERNATIVE 1

(a) An order compelling the 1st and 2nd defendants to transfer land reference number 15314/5 to the plaintiffs forthwith.

(b) In default of (a) above, the Registrar of this Honourable Court to execute the transfer documents in place of 2nd Defendant.

(c) That the plot number 15314/10 and 15314/5 be valued and the 1st and 2nd defendants be ordered to pay the plaintiff the differences in the value of the two plots.

ALTERNATIVE 2

(d) The Defendants be ordered to pay the plaintiff the prevailing market value of land reference number 15314/10.

i. General Damages for breach of contract.

j. General damages for loss of business

k. Special damages as stated in paragraph 23 above.

l. Interest on the special and general damages above.

m. Costs of this suit.

The suit was heard by Nyamweya J. who entered judgment on 22nd April 2015for the plaintiff against the 1st and 2nd defendants jointly and severally for Kshs.30,000,000/= as general damages and Kshs.811,014/75 as special damages together with interest and costs of the suit. The parties are yet to extract a decree from the said judgment. On 16th October 2015, the plaintiff’s advocates on record filed in court what is referred to as “Deed of Settlement” dated 13th October 2015. To that Deed of Settlement was attached, a copy of a certificate of title in respect of land reference number 15314/4 (I.R 93729) and another Deed of Settlement dated 9th September 2015 to which is also attached a number of documents. The Deed of settlement dated 13th October 2015 is signed by the advocates for the Plaintiff, the advocates for the estate of the 1st defendant who is said to be deceased and the advocates for the 2nd defendant. The second Deed of Settlement dated 9th September,2015 is signed by the 2nd defendant herein and one, Wanda Marlena Lolli on behalf of the estate of one, Sergio Lolli (deceased). Paragraph 7 of the Deed of Settlement dated 13th October 2015 incorporates the terms of the Deed of Settlement dated 9th September 2015 into the Deed of Settlement dated 13th October, 2015.

After filing the Deed of Settlement dated 13th October, 2015 in court as aforesaid, the advocates for the parties listed the matter for mention before me on 22nd October, 2015. On that day, Mrs. Mbugua appeared for the plaintiff while Ms. Auka appeared for the 1st, 2nd and 3rd defendants. Mrs. Mbugua told the court that the purpose for the mention was to request the court to adopt the Deed of settlement dated 13th October 2015 aforesaid as an order of the court. Ms. Auka confirmed the position. On that day, I informed the advocates who appeared before me that I had noted from the Deed of Settlement dated 13th October 2015 that the 1st defendant is deceased and as such they should consider bringing on board the administrators of his estate before the court could consider adopting the said Deed of Settlement as an order of the court. The matter was adjourned to give counsels time to consider my suggestion. The advocates for the parties listed the matter once again for mention on 18thJanuary, 2016. On that day, Mrs. Mbugua appeared for the plaintiff, Mr. Ndungu for the 2nd and 3rd defendants and Mrs. Koech for the estate for the 1st defendant. The said advocates urged me to adopt the Deed of Settlement dated 13th October 2015 aforesaid as an order of the court.

This court has power under Article 159 (2) (c) of the Constitution, Section 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order 46 Rule 20 of the Civil Procedure Rules to make any order in a suit by agreement of the parties before or after judgment has been entered in a matter before it. I am of the view that for such agreement to be recorded as an order of the court, it must meet certain conditions. First, it must be valid. Secondly, it must concern the subject matter of the suit and the parties to the suit. Where such agreement is reached after judgment has been entered in a matter, the same must also be consistent with such judgment unless the judgment is reviewed. The agreement by the parties herein which I have been called upon to adopt as an order of the court in my view does not meet these requirements. The agreement is valid to the extent that it is intended to provide a way of settling the decretal amount that was awarded to the plaintiff herein. My problem with the agreement or settlement as it has been referred to is that, it will affect persons who are not parties to this suit. Such persons are beyond the control of this court as concerns the matters which are the subject of the parties’ agreement sought to be endorsed herein as an order of the court. As I have mentioned above, the 1st defendant is deceased. His legal representative has not been joined in this suit as a party. The Deed of Settlement dated 13th October, 2015 has been executed on behalf of the deceased 1st defendant by the advocates said to be acting for his estate. The name of the administrator of the 1st defendant’s estate on whose behalf the settlement has been executed has not been disclosed. It is not even clear whether grant of letters of administration in respect of the estate of the 1st defendant has been obtained. The court cannot grant orders against unnamed person and who in any event is not a party to the suit. The second Deed of Settlement on the other hand introduces into the suit a completely new party by the name “The estate of Sergio Lolli (Deceased)”. Sergio Lolli, deceased is not a party to this suit and cannot be bound by the orders made herein be it by consent or otherwise. I have also noted that the terms of the two Deeds of Settlement go beyond the scope of what the parties had intended to achieve which is to provide an amicable way of settling the decretal amount that was awarded herein to the plaintiff. The Deeds of Settlement have created new obligations and duties for the parties. If the terms of the said Deeds of Settlement are adopted as an order of this court, the court would be expected to supervise and enforce these new obligations and duties. This court is now functus officio after the judgment that was delivered herein on 22nd April, 2015. It cannot therefore grant new reliefs or impose new sanctions on the parties.

For the foregoing reasons, I am not inclined to adopt the Deed of Settlement dated 13th October, 2015 that was filed herein on 16th October 2015 as an order of the court. This court would not be able to supervise and enforce the terms thereof for the reasons that I have given above. The application by the parties herein for the adoption of the said Deed of settlement as an order of the court is disallowed.

Delivered, Dated and Signed at Nairobi this 22rd day of January, 2016

S. OKONG’O

JUDGE

In presence of

Mrs. Mbugua for the Plaintiff

Ms. Auka for the Defendants