Egondi v Pamba (Enviromental and Land Originating Summons E008 of 2020) [2025] KEELC 7822 (KLR)

were compromised. The most important once for purposes of this ruling were NOS 1, 3 and 5 which read: “ By Consent:1. The registration of land parcel NOS Bunyala/Bulemia/3742, 3743, 3744, 3745 (as subsequently sub-divided into 4670 and 4671) 3746 and all entries thereto in the registers be and is hereby revoked and cancelled altogether and the same to revert back to the original parcel NO Bunyala/Bulemia/139. 2. – 3. The County Surveyor be and is hereby ordered to visit land parcel NO Bunyala/Bulemia/139 and with the agreement of the common tenants partition the same into four portions and draw new mutations and have them registered. 4. – 5. Upon completion of the surveying exercise and the registration process of the new numbers, this matter be fixed for mention before the Honourable Court for confirmation of compliance and final closure orders and directions.” That consent was adopted as a judgment of this Court on 7th December 2021 before Omollo J and what remained were the processes to confirm compliance. By a ruling dated 3rd May 2023, the Deputy Registrar of this Court was authorized to sign the mutation and transfer Forms on behalf of the Applicant and Daniel Congo Wangira who apparently had refused to sign the relevant forms even after having agreed to do so. A further application dated 19th December 2023 by the Respondent herein seeking to review and vary Order NO 3 of the consent judgment dated 7th December 2021 was dismissed by this Court vide a ruling delivered on 29th January 2025. 4. I now have for my determination the Notice of Motion dated 30th June 2025 by the Applicant in which he seeks the following substantive orders: 1. The Honourable Court do issue an order directing the Land Control Board Budalangi to efiect the sub-division of land parcel NO Bunyala/Bulemia/139 measuring six naught two (6.2 Ha) Hectares into two (2) equal portions as per the elders map and ruling dated 25th October 2004, District Oficer Budalangi dated 13th June 2006 and the Court Order dated 29th March 2006. 2. The Honourable Court do issue any other orders it deems fit to ensure compliance with the sub-division and prevent further disputes. 3. Costs of this application be provided for. 5. That Motion which is the subject of this ruling is premised on the provisions of ORDER 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. It is based on the grounds set out therein and also supported by the Applicant’s afidavit of even date. 6. The basis of the application is that the dispute herein was resolved by the elders through mediation on 25th October 2004 who resolved that the land parcel NO Bunyala/Bulemia/139 measuring 6.2 Hectares be sub-divided into two (2) equal portions. That ruling was adopted as an order of this Court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7822/eng@2025-11-13 2

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on 29th March 2006. Earlier, the land had been demarcated in 1972 and registered in the names of the Applicant, Respondent, Cona Mudambo And Clement Egondi but a boundary dispute arose thus necessitating the intervention of the elders who in 2004 resolved that the land be sub-divided into two (2) equal portions. That ruling has not resolved the dispute hence this Motion: 1. Copy of an application for consent of the Land Control Board by the Applicant, the Respondent and Comah Mudambo for the sub-division of the land parcel NO Bunyala/ Bulemia/139 into two portions. 2. Certificate of Oficial Search for the land parcel NO Bunyala/Bulemia/139 dated 7th May 1992. Showing that it was registered in the names of the Applicant, the Respondent, Clement Egondi And Comah Mudamba with each entitled to ¼ share. 3. Copy of the proceedings before the Budalangi Land Disputes Tribunal between Paul Nerima Pamba (as complainant) and Clement Wandera Egondi (as defendant) over the land parcel NO Bunyala/Bulemia/139. 4. Map of the land parcel NO Bunyala/Bulemia/139. 5. Copy of a letter dated 13th June 2006 addressed to the Principal Magistrate Busia Court by the District Oficer Budalangi forwarding the award of the Tribunal. 6. Copy of the order of the Principal Magistrates Court dated 29th March 2006 adopting the Tribunal’s award. 7. Copy of the Proceedings in Busia Principal Magistrates Court in Land Dispute NO 24 of 2004 adopting the Tribunals award. 7. The Motion is opposed and the Respondent filed a replying afidavit dated 4th August 2025 in which he has deposed, inter alia, that the correct name of the land in dispute is land parcel NO Bunyala/ Bulemia/8265 following the implementation of this Court’s order dated 16th December 2021 which cancelled the title to the land parcel NO Bunyala/Bulemia/139. That the name Thadeus Egondi is strange to him and the right name should be Thaddeus Egondi. That the Applicant did not disclose the existence of the land parcel NO 24 of 2004 and the parcel number which were irregularly generated following the sub-division of the land was revoked for having been null, inefiective and incapable of legal implementation. That the allegation that he has failed to cooperate in resolving this dispute is denied and a proposed sub-division pursuant to the Court Order of 16th December 2021 is incomplete because the Applicant has refused to sign the necessary documents to enable it’s finalization and oficial registration. The Applicant’s reliance on the elders decision demonstrates lack of commitment to a fair and equitable resolution given that his family has never occupied the land in dispute. The Motion should therefore be dismissed with costs. 8. The following documents are annexed to the replying afidavit: 1. Copy of the consent order issued by Omollo J on 7th December 2021. 2. Copy of a letter dated 23rd March 2023 addressed to the Deputy Registrar of this Court by the Land Registrar Busia confirming that following the consent order issued on 7th December 2021, it had been decided that the land be subdivided into two (2) portions and not into four (4) portions as per the consent. The Applicant filed a further afidavit dated 21st October 2025 in which he has deposed, inter alia, that the Respondent’s assertion that the correct parcel number is Bunyala/Bulemia/8265 is incorrect. That the Land Registrar, following the order by this Court, revoked the sub- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7822/eng@2025-11-13 3

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divisions but reverted the land to a new land parcel NO Bunyala/Bulemia/8265. That the Respondent’s reference to the names Thaddeus Egondi and Thaddeus Egondi is immaterial and does not afiect the substance of the case. That it is not correct that the Applicant has refused to sign the relevant documents but he is intent on ensuring the implementation of the consent orders and the assertion that the sub-division was unfair or irregular is unfounded. Further, the Respondent lacks capacity to bring this claim as he has not filed any succession proceedings in respect to the Estate of the late Thaddeus Egondi and he has misrepresented himself as a party in these proceedings since under the Law of Succession Act, only an Administrator can represent the Estate of a deceased person. Therefore, the Respondent’s replying afidavit amounts to abuse of process. 9. The Applicant is acting in person and when the parties appeared before me for directions, it was agreed that this Court relies on the parties respective afidavits in making it’s ruling. 10. I have considered the Motion, the rival afidavits and the annextures thereto. 11. It is common ground that by a consent letter dated 13th March 2021 and filed herein on 23rd September 2021, the parties herein together with one Daniel Congo Wangira who is not a party to this Motion agreed to several orders which formed the basis of a consent judgment signed by Omollo J and which was extracted as a decree of this Court on 16th December 2021. The salient feature of that consent judgment was that the titles of land parcels NO Bunyala/Bulemia/3742, 3743, 3744, 3745 (as subsequently sub-divided into 4670 and 4671) 3746 were revoked and cancelled and the same to revert back to the original land parcel NO Bunyala/Bulemia/139. The parties went to the Land Registrar Busia one Nicholas A. Obiero for purposes of efiectuating that consent judgment by partitioning the land parcel NO Bunyala/Bulemia/139 into four (4) portions. In his letter dated 23rd March 2023 and annexed to the Respondents replying afidavit, Mr Obiero writes in the first two (2) sentences thus: “ Re: Implementation Of Court Order On Elc No E08 Of 2020 Given On 7Th December 2021 In compliance with the above order, we visited the ground on 17th December 2021. After hearing the parties involved, we came to a resolution that the land should be partitioned into TWO and not FOUR portions as was spelled in the order.” Then in the last paragraph of the letter, Mr Obiero writes thus: “ We have cancelled all the parcels as was ordered and combined them as provided under Section 160 of the Land Registration Act drawn a new mutation and issued a new number Bunyala/Bulemia/8625 which is equivalent to Bunyala/Bulemia/139”. No evidence was placed before this Court to show that a new title NO Bunyala/Bulemia/8265 which was created is equivalent to title NO Bunyala/Bulemia/139. Neither the Land Registrar Busia Mr Obiero nor any of the parties herein had the authority to vary a consent judgment issued by the Court on 7th December 2021. If the parties desired to vary their consent order dated 13th September 2021, that could only properly be done through another consent letter and which should now have incorporated the new title number Bunyala/Bulemia/8265 if indeed it exists. Indeed, on 29th April 2024, I did mention to Mr J. P. Makokha who was then acting for the Respondent herein that in my view, the only way out of the conundrum in which the parties find themselves is by recording another consent to vary the earlier consent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7822/eng@2025-11-13 4

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12. There is also the mention of an earlier ruling by the Court on 29th March 2006 arising out of the elders award issued on 25th October 2004 directing that the land parcel NO Bunyala/Bulemia/139 be subdivided into two (2) equal portions. This suit was filed on 27th October 2020 before being amended on 8th March 2021. If there was a previous suit involving the same subject matter, then it would mean that this suit was indeed res judicata at the time of filing it but which the parties did not disclose. 13. The bottom line is that if, as per the Land Registrar’s letter annexed to the Applicant’s further afidavit, the land parcel NO Bunyala/Bulemia/139 no longer exists and has reverted to Bunyala/Bulemia/8265, then basically there is no longer any land parcel known as Bunyala/Bulemia/139 to warrant the grant of the orders sought by the Applicant. If, on the other hand, parcel NO Bunyala/Bulemia/139 still exists, then it must be sub-divided in accordance with the consent judgment dated 7th December 2021. The only option open to the parties in my view, is for them to all agree and file another consent letter if it will address whatever challenges they now face. 14. The up-shot of all the above is that the Notice of Motion dated 30th June 2025 is devoid of merit. It is dismissed with each party bearing their own costs. RULING DATED, SIGNED AND DELIVERED ON THIS 13TH DAY OF NOVEMBER 2025 IN OPEN COURT. BOAZ N. OLAO JUDGE 13TH NOVEMBER 2025 Respondent – Absent Applicant - Present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7822/eng@2025-11-13 5

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