[2020] KEELC 909 (KLR)
The court found that the applicants failed to establish contempt of court by the respondents, as there was insufficient evidence that the respondents had denied them access to water or disobeyed the court order of 2nd December, 2019. The area chief's letter confirmed that access to water was not impeded by the...
Source-derived case information.
- Citation
- [2020] KEELC 909 (KLR)
- Parties
- Applicant: Andrew Oponyo Mulama; Applicant: Edward Makanji Mulama; Respondent: Samuel Omulama Amakanji; Respondent: Vincent Nyanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 89 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Access and Contempt
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Access to Water, Contempt of Court, Interlocutory Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Oponyo Mulama
Applicant
Edward Makanji Mulama
Applicant
Samuel Omulama Amakanji
Respondent
Vincent Nyanga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Access and Contempt
Legal Issues
- 1 Whether the respondents have denied the applicants access to water by fencing off part of the suit land.
- 2 Whether the respondents have disobeyed or disregarded the court order dated 2nd December, 2019.
- 3 Whether the applicants have established a case for contempt of court against the respondents.
Ratio Decidendi
The court found that the applicants failed to establish contempt of court by the respondents, as there was insufficient evidence that the respondents had denied them access to water or disobeyed the court order of 2nd December, 2019. The area chief's letter confirmed that access to water was not impeded by the fence. The court held that the allegations required to be established by way of evidence at a full hearing and that the interlocutory application lacked merit. Consequently, the application was dismissed and the parties were advised to proceed to a substantive hearing of the main suit.
Court Disposition
application dismissed
Orders
- The application dated 14th September 2020 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 89 OF 2019
ANDREW OPONYO MULAMA
EDWARD MAKANJI MULAMA....................................................APPLICANTS
VERSUS
SAMUEL OMULAMA AMAKANJI
VINCENT NYANGA......................................................................RESPONDENTS
RULING
The application is dated is dated 14th September 2020 and is brought under rule 2 (2) b & 3 (2) of the High Court Practice and Procedure Rules of the Judicature Act Section 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules seeking the following orders;
1. That this matter be certified as urgent and be heard during the summer vacation of the High Court and service in the first instance.
2. That an order be and is hereby issued to the respondents to give the plaintiffs access to water and or the river by pulling down the fence in that parcel of land known as Kisa/Emaitsi/83 pending the hearing and determination of this suit.
3. That the respondents be and are hereby ordered to comply with the orders herein granted on 2nd December, 2019 failure to which they will automatically be cited for contempt of court orders.
4. That the costs of this application be provided for.
It is based on the affidavit of Andrew Oponyo Mulama and grounds that this honourable court issued orders on the 1st December, 2019 that the respondents should not dispose off the subject property known as pending the hearing and determination of this suit. That all has been well until the 1st respondent sold some of the suit property and whereby the alleged sellers brought in by the 1st respondent have now occupied some of the said land. That the 1st respondent has now fenced off part of the said land and thereby denying the applicants access to the river and water which is their main source of water and as a result the applicants are suffering without water. That the respondents have disobeyed and disregarded the said order dated 2nd December, 2019. That if the orders sought are not granted the objectors stand to suffer irreparable harm and damage and the suit herein will be rendered null and void as the respondent is in the process of selling and surveying the said property further that the applicants cannot access water.
The respondents submitted that the area chief under whose jurisdiction plot 83 is situated has written the letter marked herein as exhibit ‘SOA 2’ confirming that the applicants, contrary to their assertions, are indeed able to access water from the river and the fence is not an impediment at all. That the fence in question herein is one which he put up demarcating his share of plot 83 following a family meeting held on the 17th day of April, 2019 as confirmed by the minutes thereof and a letter from the area chief marked as exhibits ‘SOA 3 and 4’. That after the family meeting held on the 17th day of April, 2019, he sold his entire portion to the 2nd respondent on the 30th day of August, 2019 as the relationship between the applicants and him was not cordial. Annexed as exhibit marked ‘SOA 5’ is a copy of the sale of land agreement. That as at the time the consent order was issued on the 2nd day of December, 2019, he had already disposed of his portion to the 2nd respondent but in compliance to the said order, he has been restrained from formally transferring this portion to him.
This court has carefully considered the application and the submissions therein. The applicants submitted that the 1st respondent sold some of the suit property and whereby the alleged sellers brought in by the 1st respondent have now occupied some of the said land. That the 1st respondent has now fenced off part of the said land and thereby denying the applicants access to the river and water which is their main source of water and as a result the applicants are suffering without water. That the respondents have disobeyed and disregarded the said court order dated 2nd December, 2019. The respondents submitted that the area chief has written the letter marked herein as exhibit ‘SOA 2’ confirming that the applicants, are indeed able to access water from the river and the fence is not an impediment at all. That the fence in question herein is one which he put up demarcating his share of plot 83 following a family meeting held on the 17th day of April, 2019 as confirmed by the minutes thereof and a letter from the area Chief marked as exhibits ‘SOA 3 and 4’. That after the family meeting held on the 17th day of April, 2019, he sold his entire portion to the 2nd respondent on the 30th day of August, 2019. I find that contempt has not been established in this matter and allegations contained in this application will have to be established by way of evidence. The applicants are well advised to take an early hearing date in this matter. I find that this application is not merited and I dismiss it. Costs to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 27TH OCTOBER 2020.
N.A. MATHEKA
JUDGE