[2017] KEELC 982 (KLR)
The court found that the 1st to 11th Defendants were duly served with the court orders restraining them from interfering with the Plaintiff's use and enjoyment of the suit land. Despite service, the Defendants continued to engage in acts expressly prohibited by the orders, including cutting trees, burning charcoal,...
Source-derived case information.
- Citation
- [2017] KEELC 982 (KLR)
- Parties
- Plaintiff: Benjamin Kasee Munguti; Defendant: Felix Kioko Kisalu; Defendant: James Kilonzo; Defendant: Raphael Kamuti; Defendant: Mwau Kyoa; Defendant: Joseph Mulaa; Defendant: Timothy Mwina; Defendant: Peter Steel; Defendant: Isaac Basilo; Defendant: Nyamai Wambua; Defendant: Telesia Kilonzo; Defendant: Leah Mutavi; Defendant: County Government of Machakos
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 116 of 2016
- Procedural Posture
- Contempt Application / Ruling on Contempt Application
- Outcome
- Application for contempt allowed against the 1st to 11th Defendants.
- Judges
- OA Angote
- Legal Topics
- Contempt of Court, Injunctive Orders, Land Disputes, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Kasee Munguti
Plaintiff
Felix Kioko Kisalu
Defendant
James Kilonzo
Defendant
Raphael Kamuti
Defendant
Mwau Kyoa
Defendant
Joseph Mulaa
Defendant
Timothy Mwina
Defendant
Peter Steel
Defendant
Isaac Basilo
Defendant
Nyamai Wambua
Defendant
Telesia Kilonzo
Defendant
Leah Mutavi
Defendant
County Government of Machakos
Defendant
Procedural Posture
Contempt Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the Defendants were served with the court orders of 9th February, 2017 and willfully disobeyed them.
- 2 Whether the Defendants' actions amount to contempt of court warranting committal to civil jail.
- 3 Whether the Plaintiff is entitled to the orders sought for the arrest and punishment of the Defendants.
Ratio Decidendi
The court found that the 1st to 11th Defendants were duly served with the court orders restraining them from interfering with the Plaintiff's use and enjoyment of the suit land. Despite service, the Defendants continued to engage in acts expressly prohibited by the orders, including cutting trees, burning charcoal, demolishing the Plaintiff's house, and other acts of wastage. The Defendants did not respond to the application or offer any explanation or defense. The court held that the uncontroverted evidence, including affidavit and photographic proof, established willful disobedience of the court's orders. Upholding the authority of the court required a finding of contempt and the...
Court Disposition
Application for contempt allowed against the 1st to 11th Defendants.
Orders
- The officer commanding Kithimani Police Station to arrest the 1st to 11th Defendants and arraign them in court within fourteen days for mitigation and sentencing.
- The 1st to 11th Defendants to pay the costs of the application.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 116 OF 2016
BENJAMIN KASEE MUNGUTI....................................PLAINTIFF
VERSUS
FELIX KIOKO KISALU.......................................1ST DEFENDANT
JAMES KILONZO..............................................2ND DEFENDANT
RAPHAEL KAMUTI ...........................................3RD DEFENDANT
MWAU KYOA ......................................................4TH DEFENDANT
JOSEPH MULAA ...............................................5TH DEFENDANT
TIMOTHY MWINA ..............................................6TH DEFENDANT
PETER STEEL.....................................................7TH DEFENDANT
ISAAC BASILO....................................................8TH DEFENDANT
NYAMAI WAMBUA..............................................9TH DEFENDANT
TELESIA KILONZO ..........................................10TH DEFENDANT
LEAH MUTAVI....................................................11TH DEFENDANT
COUNTY GOVERNMENT OF MACHAKOS....12TH DEFENDANT
RULING
1. In the Application dated 24th May, 2017, the Plaintiff wants the Defendants to be committed to six (6) months imprisonment for disobeying the orders of the court of 9th February, 2017 and issued on 24th February, 2017.
2. The Application is premised on the grounds that the contemnors were duly served with the court orders of 9th February, 2017; that the conduct of the contemnors has brought the honour and dignity of the court into disrepute and that the Respondents should be committed to jail.
3. In his Affidavit, the Plaintiff has deponed that even after being served with the order of the court, the Defendants have continued to uproot his banana plants besides cultivating maize on the suit land; that they have continued to cut trees, burn charcoal and carry out other acts of wastage on the land and that the Defendants have also demolished his house and chased him from the suit land.
4. Although the Defendants were served with the Application, they did not respond to it.
5. The Plaintiff’s advocate appeared before me on 18th September, 2017 and urged that the Application should be allowed.
6. The record shows that on 7th February, 2017, this court issued an order restraining the Defendants or their agents from “interfering, trespassing, cutting trees, alienating, wasting, damaging or interfering with the Plaintiff’s quiet use and enjoyment of land parcel number 186 located in Mwea Farms Company Limited pending the hearing and determination of the suit.
7. The Affidavit of the process-server sworn on 16th May, 2017 shows that the 1st – 11th Defendants were served with the order of the court on 9th March, 2017.
8. However, despite being served with the order, the Defendants have continued to disobey it by cutting down trees, burning charcoal and even demolishing the Plaintiff’s house.
9. The Plaintiff has annexed on his Affidavit the acts of wastage of the suit land by the Defendants including the debris that remain after the demolition of his house.
10. It would appear that the Defendants herein have no respect for the rule of law. Indeed, their disdain for the rule of law is exemplified by the fact that they did not oppose the Application dated 17th August, 2016 which gave rise to the impugned orders and the current Application.
11. As was held in the case of Commercial Bank of Africa Limited vs. Isaac Kamau Ndirangu (1991) eKLR, it is only by acting swiftly and firmly when an order of the court is flouted that the dignity of the court can be held.
12. Considering that the Defendants have not rebutted the Plaintiff’s disposition that they disobeyed the orders of this court, and in view of the photographic evidence of their contemptuous acts, I find and hold that the 1st- 11th Defendants, jointly and severally, disobeyed the orders of this court made on 9th February, 2017.
13. Having found the 1st – 11th Defendants to be in contempt of the orders of this court, I shall, which I am obliged to do, proceed to punish the said Defendants after I have heard them in mitigation.
14. Considering that the 1st – 11th Defendants are not in court, I shall make the following order:
a. The officer commanding Kithimani Police Station do arrest the 1st – 11th Defendant and arraign them in this court within fourteen (14) days of the date of this Ruling for the purpose of mitigation and sentence.
b. The 1st – 11th Defendants to pay the costs of the Application.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 9TH DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE