PLISTER OBARA OKUMU v KENYA ELECTRICITY TRANSMISION CO LTD [2012] KEHC 1284 (KLR)

REPUBLIC OF KENYA

High Court at Kisumu

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PLISTER OBARA OKUMU...........................................................................................PLAINTIFF

VERSUS

KENYA ELECTRICITY TRANSMISION CO LTD........................................................DEFENDANT

RULING

On 28th June 2012 the parties entered the following consent:-

(1)That the government valuer proceed and value the building and the valuation report the cost thereof be met by both parties on a 50: 50 basis.

(2)That the valuation be undertaken within fourteen (14) days from today.

(3)The parties to take appropriate mention date at Registry.

Subsequently a valuation was done which apparently produced two reports. The first one dated 9th July 2012 estimates the plinth area to be 1200ft2 approximately and the estimate value to be Kshs. 2,900,000

The 2nd report on the other hand withdraws the 1st report and according to it the plinth area is estimated at 800ft2 approximately and the value placed at Kshs. 1,800,000.

The plaintiff application dated 29th August 2012 prays that this court effects the Order of 3rd July 2012 by entering Judgment in her favour for the sum of Kshs. 2,900,000 and the defendant be ordered to settle the same. It is supported by the plaintiffs affidavit sworn on 12th September 2012.

The defendant has vehemently opposed the same vide the affidavit of one Antony Mbunya Kiarahu sworn on 5th October 2012. According to the defendant the proper report to be relied upon is the second one as it supercedes the first valuation report.

I have carefully listen to the oral submissions by the parties as well as the affidavit evidence on record. What is not in dispute is that the parties agreed to have a valuation done on the plaintiff property for purposes of being compensated.

The valuation was done by the same government valuer who unfortunately gave two (2) versions of the report. The second one was acceptable to the defendant as the 1st one valued the land and not the house as envisaged by the consent.

The valuer who was present in court confirmed that indeed power lines had already been laid over the house. This of course makes the application more urgent.

This being the case therefore and taking into totality the parties submission I order that:-

(a)The sum of Kshs. 1,800,000 which is indicated in the 2nd valuation report be paid directly to the plaintiff within fourteen (14) days from        the date herein.

(b)A valuation report be undertaken by a separate government valuer so as to ascertain whether or not the plaintiff should be compensated further if any and the report be filed within the next thirty (30) days from the delivery of this Ruling.

(c )The parties shall further pay on equal basis the costs of this 3rd valuation

(d)Parties shall take an appropriate mention date once the valuation is     filed.

(e)Each party shall bear their own costs

Dated, signed and delivered at Kisumu this 31st day of   October 2012.

H.K. CHEMITEI JUDGE

In the presence of:

Ojuro for P. J. Otieno for the Plaintiff

Ashitiva for the defendant

HKC/aao