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ELCOtherHoma Bay ELC (not stated in judgment)· [2021] KEELC 1170 (KLR)

Dorcas Adhiambo Ogwel v Siprosa Apiyo Oyata & another [2021] KEELC 1170 (KLR)

Environment and Land Court
28 October 2021
GOG M A Ongondo
1,158 words in judgment
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The bottom line

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A Homa Bay court ended a 32-year land dispute by turning the parties' own settlement agreement into an enforceable court judgment, avoiding a full trial.

What this practically means

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Executive summary

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The plaintiff, Dorcas Adhiambo Ogwel, filed a plaint dated 6th July 2020 seeking declarations that the defendants' rights over LR NO. CENTRAL KASIPUL/KAMUMA/5882 (0.05 Ha in Homa Bay County) stood extinguished under Sections 7, 37 and 38 of the Limitation of Actions Act; that she had acquired title by adverse possession after over 32 years' possession; revocation of the 2nd defendant's registration and transfer of the land to her; alternatively a declaration of trust; and a permanent injunction. The defendants did not file a defence. Instead, on 5th August 2020 the plaintiff's counsel and the defendants in person presented a consent dated 1st August 2020 under which the 2nd defendant covenanted to sub-divide the suit property and transfer a portion measuring 65 feet by 40 feet to the plaintiff, to procure Land Control Board consent, to facilitate survey at the plaintiff's expense, to pay agreed costs of Kshs.50,000, and to be restrained by permanent injunction from interfering with the plaintiff's title to the resultant portion. The claim against the 1st defendant was withdrawn with no order as to costs. Relying on Great Lakes Transport Co. Ltd v Kenya Revenue Authority (2009) KLR 720 on issues flowing from pleadings or as framed by parties, the court held that the issues were captured in and resolved by the consent. Applauding the amicable settlement as consistent with Article 159(2)(c), the court adopted the consent as its judgment. Delivered at Homa Bay on 28th October 2021 by G M A Ongondo, Judge.

Key legal issues

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Determination of a land dispute by consent of the parties

Holding

The court adopted the parties' consent dated 1st August 2020 as the judgment of the court, thereby resolving all issues in the suit, including the claim for adverse possession and/or trust, by a transfer of 65 feet by 40 feet to the plaintiff

Reasoning

The plaintiff sued claiming extinguishment of the defendants' rights and acquisition of title by adverse possession and/or implied/constructive trust over LR CENTRAL KASIPUL/KAMUMA/5882. The defendants filed no defence. Rather than proceed to trial, the plaintiff and the 2nd defendant recorded a detailed consent providing for sub-division and transfer of a portion, withdrawal of the claim against the 1st defendant, and agreed costs. The court considered the plaint and the consent in their entirety and held that the issues were captured in, and resolved by, the consent, which it adopted as judgment in line with the constitutional imperative of promoting alternative dispute resolution.

p. 2

Legal principles established

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  • The issues for determination in a suit flow from either the pleadings or as framed by the parties for the court's determination
  • Parties may resolve their dispute amicably, in consonance with Article 159(2)(c) of the Constitution, and such settlement may be adopted as a judgment

Court orders

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  1. 1.The consent dated 1st August 2020 is adopted as the judgment of the court
  2. 2.It is so ordered

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 37 and 38
  • Constitution of Kenya 2010Article 159(2)(b) and 159(2)(c)

Cases cited (1)

  • Great Lakes Transport Co. Ltd –vs– Kenya Revenue Authority
    (2009) KLR 720
Jurisdiction invoked
First-instance land dispute before the Environment and Land Court; parties' consent adopted as judgment pursuant to Article 159(2)(c) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dorcas Adhiambo Ogwel v Siprosa Apiyo Oyata & another [2021] KEELC 1170 (KLR)", Case Analysis (2021). Homa Bay ELC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1170/eng@2021-10-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.