[2023] KEELC 22266 (KLR)

Bartuos & 3 others v County Land Adjudication & Settlement Officer, Baringo & 4 others; Roberts & 30 others (Interested Parties) (Environment and Land Constitutional Petition 18 of 2022) [2023] KEELC 22266 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22266 (KLR)

Republic of Kenya

In the Environment and Land Court at Iten

Environment and Land Constitutional Petition 18 of 2022

L Waithaka, J

December 7, 2023

FORMERLY ELDORET ELC CONSTITUTIONAL PETITION NO.21 OF 2020

Between

Kipkemboi Arap Bartuos & 3 others

Petitioner

and

The County Land Adjudication & Settlement Officer, Baringo

1st Respondent

The County Government Of Baringo

2nd Respondent

The Director Of Land Adjudication And Settlement

3rd Respondent

The Chief Land Registrar

4th Respondent

The Committee Bartum Adjudication Section

5th Respondent

and

Murray Henry David Roberts & 30 others

Interested Party

Ruling

1. By a Judgment delivered on 22nd September 2022, this court entered judgment in favour of the petitioners/applicants in the following terms:-a.A declaration be and is hereby issued that the actions of the respondents to adjudicate, demarcate and register the petitioners’ and 821 other registered members of lands in Bartum Adjudication Section in the name of the 2nd respondent and the interested parties as plot Nos. 1-77 is unlawful, arbitrary, unreasonable, contrary to good governance and without regard to the petitioners’ legitimate expectation of a fair administrative action;b.A permanent injunction restraining the 2nd and 4th respondents and the Interested Parties by themselves and their employees or servants howsoever from registering, alienating, dealing with, engaging in construction activities, transferring and/or evicting the petitioners from their parcels of land;c.The costs of the petition be awarded to the petitioners.

2. Aggrieved by the judgment, the interested parties/respondents appealed against the judgment and vide an application dated 9th November 2022, sought stay of execution of the judgment and all consequential orders emanating therefrom pending the hearing and determination and the appeal. Vide a ruling delivered on 4th May 2023, this court allowed the application. In so doing the court inter alia observed/stated:-“In applying the principles enunciated in the cases cited above to the circumstances of this case, where the subject matter is land found to have been irregularly and/or unlawfully registered in favour of the interested parties and where the effect of the appealed judgment is to render the titles issued in favour of the appellants’ inoperative, I am satisfied that there is need to maintain the status quo which obtained before the appealed judgment was made. Such order is necessary in the circumstances of this case because if the judgment is executed by way of fresh adjudication process, the exercise might affect the titles held by the appellants, a situation which may be undesirable in the event the Court of Appeal were to overturn the decision of this court rendering the applicants’ title inoperative. Execution of the judgment appealed from, whether by fresh adjudication or otherwise may in one way or another affect the titles held by the interested parties.”

3. Claiming that the order of maintenance of status quo issued by this court on 4th May 2023 has been disobeyed by the respondents/interested parties, the petitioners/ applicants filed the notice of motion application dated 21st August 2023 seeking to punish the respondents /interested parties for the alleged disobedience of the court order.

4. The application is premised on the grounds that the respondents/interested parties have ignored the orders and started fencing the suit property-plot no. 67; that the action of the respondents/interested parties complained about is prejudicial to the applicants in that it affects their claim to the land and use of it and that the action complained of is a total disrespect to the court and a dereliction of the law for which the respondents/interested parties ought to be held to account.

5. The application is opposed through the replying affidavit of Simeon Kiplagat Chebon (the 2nd respondent, sworn on 21st September 2023. Through that affidavit, the respondents have explained that they understood the order of status quo issued by the court to mean that the issue of production of title deeds and adjudication as opposed to carrying out any activities on the parcels of land was stopped.

6. Denying the allegation that they disobeyed the order of the court in question, the respondents urge the court to interprete its order for purpose of clarity.

7. According to the respondent, the court order did not stop them from carrying out the activities they were carrying out in the suit property before the judgment was issued like rearing animals.

8. The respondent admits that they have erected a fence in the suit property but deny that the action amounts to contempt of court as it is merely a reinforcement of the fence which existed in the suit property.

9. In reply to the issues raised in the respondents’ replying affidavit, the applicants filed a supplementary affidavit reiterating their claim that the respondents breached the order of the court.

10. According to the applicants, the order of maintenance of status quo issued by the court meant that all parties to the suit were restrained from engaging in actions which point to attempt to prove ownership or proprietorship of the land in dispute.

11. It is contended that by fencing the suit property, the respondents are demonstrating ownership or proprietorship of the suit property.

12. Pursuant to directions given on 26th September 2023 that the application shall be disposed by way of written submissions, parties filed submission, which I have read and considered.

Analysis and determination 13. Having carefully read and considered the application, the circumstances leading to filing of the application, response and/or explanation offered by the respondents and the submissions by the respective parties, I find the issue for the court’s determination to be whether the respondents are in contempt of the order issued on 4th May, 2023.

14. As pointed out herein above, the order made on 4th May 2023 was for maintenance of the status quo which obtained before the judgment appealed from was delivered.

15. To appreciate the status quo that obtained before the judgment appealed from, one needs to go to the case urged by the parties and the evidence adduced in support thereof during the hearing of the main suit.

16. A review of those pleadings and the evidence shows that the respondents were in use and occupation of the suit property, having obtained title thereto. The petitioner/applicants, on the other hand were laying a claim on the suit property as members of BAS. Unlike, the petitioners/interested parties, their rights to the suit property had not crystallized. By issuing an order of maintenance of the status quo that obtained before the judgment, the court simply meant that the respondents would continue enjoying rights and privileges they were enjoying before the delivery of judgment. They were however, not to commit acts likely to change or interfere with the status of the suit property or its character. The court did not in any way restrain use or forbid use of the suit property by the respondents as claimed by the applicants.

17. In view of the foregoing, I find the application for contempt to be lacking in merit and I dismiss it with costs to the parties who defended it.

18. Orders accordingly.

DATED, SIGNED AND DELIVERED, AT ITEN THIS 7TH DAY OF DECEMBER, 2023L. N. WAITHAKAJUDGERuling delivered through Microsoft video conferencing platform in the presence of:Ms. Kabaluka holding brief for Mr. Orege for the 1st – 7th respondentsN/A for the petitionersN/A for the 1 – 5th respondentsN/A for the 1st – 9th Interested parties and 11 – 31st Interested partiesThomas Motachi: Court Assistant