1. Once in a while, in this life of a judge, an application will be placed before a judge for determination, and the judge will wonder whether the application has been filed just for the fun of it, or whether its sole purpose is to vex the other party. This is one such application. I will indeed not waste too much time on it for reasons that will shortly be seen.
2. Before me is an application dated 14 March 2025 by Dismas Nyakundi Mageka, the 1st defendant . The substantive prayer that he seeks is an order of eviction against the plaintiffs/respondents from the land parcel Central Kitutu/Daraja Mbili/2231 (the suit land). The application is partly anchored on the grounds that by a judgment and decree of this court dated 9 November 2022, the applicant was awarded the suit land. The respondents have filed a replying affidavit to oppose the motion which I have considered.
3. I have gone through the record. What I see is that through a plaint filed on 30 September 2013, the respondents sued the applicant and his mother, one Salome Gesare Onchari (who subsequently died in 2014) seeking orders for their eviction from the suit land. The defendants filed a defence, more or less claiming that this land was fraudulently carved out of a parcel No. 431 that was owned by the grandfather of the applicant. It would appear that the applicant was occupying some land adjacent to the suit land and which may also have resulted from subdivision of the parent title. The court that was handling the matter (Onyango J) ordered a visit by the Land Registrar and County Surveyor who filed a report dated 26 October 2021.
4. In that report it is elaborated that the land parcel No. 431 is an adjudication number that was owned by one Onchari Mageka. This land was transmitted to the 2nd defendant who subdivided it to bring forth the parcels No. 1896 – 1899 on 24 October 1992. On 28 September 1993, the 2nd defendant further subdivided the parcel No. 1896 to bring forth the parcels No. 2230 and 2231. This parcel No. 2231 is the disputed parcel of land.
5. The Surveyor found an existing physical boundary on the land but which does not conform to the measurements on the ground so that the parcel No. 2231 was affected by 11%. The surveyor then marked the approximate point of boundary. It is this report that the learned judge adopted as the judgment of the court on 9 November 2022 and the judge ordered each party to bear his/her costs.
6. Now, in this application, the applicant claims that the judgment and decree of the court awarded him this parcel No. 2231. This is a ridiculous statement since there is no such judgment or decree. Nowhere in the judgment of the court was the applicant awarded this parcel No. 2231. Further, the applicant wants the respondents evicted from the suit land. How can the applicant obtain such order when the suit land is actually owned by the respondents and there is no judgment in favour of the applicant ?
7. That is why I started this judgment by wondering whether the applicant is just filing this application for the fun of it or whether he just wants to vex the respondents. Well, if by any chance, the position of the applicant is that the respondents have strayed outside the boundaries of the parcel No. 2231, then he needed to bring a report to that effect demonstrating that encroachment but he has not done so.
8. I do not see the need of wasting too much time in this application. It is clearly a frivolous application and it is hereby dismissed with costs of Kshs. 10,000/= to the respondents.
9. Orders accordingly.
DATED AND DELIVERED THIS 25 DAY OF JUNE 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Osoro for the applicant
Ms. Mukoya h/b for Mr. Nyamurongi for the respondents
Court Assistant – Michael Oyuko