[2018] KEELC 3168 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC. 381 OF 2015[FORMERLYHCCC 123 OF 2006]

SIENYA OLUOCH.............................PALINTIFF

VERSUS

JULIUS OCHOLA OJUNGA........DEFENDANT

JUDGMENT

1. Sienya Oluoch, the Plaintiff, through M/s Mwamu, Nyanga & Company Advocates, sued Julius Ochola Ojunga, the Defendant, through the plaint dated 1st May 2006, seeking for the following;

a) “A declaration that the Defendant subdivision of Kisumu/Nyalunya/222 into three parcels was illegal and unlawful.

b) That the title namely Kisumu/Nyalunya/3391, 3390 and 3389 be cancelled and reverted to Kisumu/Nyalunya/222.

c) General damages for trespass and fraud to land parcel No. Kisumu/Nyalunya/222.

d) Costs and interest.”

2. The Defendant filed his statement of defence in person dated 22nd January 2007 among others averring that the Plaintiff is only entitled to 0. 15 hectares from Kisumu/Nyalunya/222. That by notice of appointment dated 30th April 2007, M/s D.O.E Anyul & Co. Advocates came on record for the Defendant.

3. That the parties entered a consent of 12th June 2008 under which the land parcel Kisumu/Nyalunya/222 was to be resurveyed with a view of apportioning it into two equal portions. That the Plaintiff was to take the upper part and the Defendant the lower part. That the record shows that the consent was carried out with the Plaintiff being registered with Kisumu/Nyalunya/3477 and Defendant 3478 each measuring 0. 95 hectares. The Plaintiff paid the required fees alone. That on the 11th December 2008, the Court directed the Defendant to refund the Plaintiff Kshs. 7750/= being half the fee incurred. The refund was reported to have been made during the subsequent mention of 6th February 2009. That during the mention of 13th February 2009, the Court was informed that the Defendant had stopped ploughing the disputed portion. There has been two unsuccessful attempts by the Defendant to challenge the consent order.

4. The Plaintiff then filed the notice of motion dated 28th August 2013 on the 17th September 2013, seeking for the following;

1. “That the matter be marked as settled with costs to the Plaintiff.

2. That the costs of this application be granted to the Plaintiff.

3. That in the alternative, judgment be entered for the Plaintiff with costs.”

The Defendant opposed the application through the grounds of opposition dated 10th October 2013. The Court gave directions for filing and exchanging written submissions but only the Counsel for the Plaintiff filed theirs dated 23rd March 2015 on the 30th June 2017.

5. The Court has carefully considered the pleadings filed by both parties, the record, especially the consent order of 12th June 2008, the grounds on the application, grounds of opposition, affidavit evidence, written submissions by Counsel for the Plaintiff and come to the following conclusions;

a) That the parties have through the consent of 12th June 2008 to share the land equally effectively settled the main prayers in the Plaintiff’s claim. That both parties shared the surveyor’s expenses and each has been registered with their half share of Kisumu/Nyalunya/222. The Plaintiff got Kisumu/Nyalunya/3477 while the Defendant got 3478.

b) That what remains to be settled is the issue of costs and general damages. The Plaintiff is only seeking for costs and is taken to have abandoned the claim for general damages. That as the Plaintiff has succeeded in his main claim, he is entitled to costs in accordance with Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya.

c) That the Court finds merit in the Plaintiff’s Notice of Motion dated 28th August 2013, and filed on the 17th September 2013.

6. That following from the foregoing, the Court enters judgment for the Plaintiff against the Defendant in the following terms;

a) That the application dated 28th August 2013 be and is hereby allowed in terms of prayers 1 and 2 with costs.

b) That the suit herein be and is hereby marked settled in terms of the consent entered on the 12th June 2008, with costs to the Plaintiff.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 30TH DAY OF MAY 2018

In the presence of:

Plaintiff Absent

Defendant Absent

Counsel N/A

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE