[2007] KEHC 3564 (KLR)
The court found, based on witness testimony and documentary evidence from the registrar of persons, that John Wangongu Ndagwatha is the same person as John Kiarie, the 3rd defendant. The court rejected the respondent's denial and attempts to disassociate himself from the name Kiarie, noting that the extract from the...
Source-derived case information.
- Citation
- [2007] KEHC 3564 (KLR)
- Parties
- Plaintiff: Charles Ngalaka Mulinge & 3 Others; Defendant: Tawheed Properties Ltd & 5 Others; Defendant: John Wangongu Ndagwatha (alias John Kiarie)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 164 of 2007
- Procedural Posture
- Contempt Application / Ruling on Identity and Continuation of Contempt Proceedings
- Outcome
- Application for continuation of contempt proceedings granted; costs awarded to plaintiff/applicant.
- Legal Topics
- Contempt of Court, Identity of Parties, Injunctive Orders, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ngalaka Mulinge & 3 Others
Plaintiff
Tawheed Properties Ltd & 5 Others
Defendant
John Wangongu Ndagwatha (alias John Kiarie)
Defendant
Procedural Posture
Contempt Application / Ruling on Identity and Continuation of Contempt Proceedings
Legal Issues
- 1 Whether the person arrested and brought before the court is the same individual as the 3rd defendant named in the suit.
- 2 Whether the said individual, John Wangongu Ndagwatha, is also known as John Kiarie and is liable to face contempt proceedings for breaching court orders.
Ratio Decidendi
The court found, based on witness testimony and documentary evidence from the registrar of persons, that John Wangongu Ndagwatha is the same person as John Kiarie, the 3rd defendant. The court rejected the respondent's denial and attempts to disassociate himself from the name Kiarie, noting that the extract from the registrar of persons indicated his father's name as Kiarie and that he had introduced himself as such to witnesses. The court concluded that the respondent could not avoid contempt proceedings by denying his identity, and therefore ordered that contempt proceedings continue against him, with costs awarded to the plaintiff/applicant.
Court Disposition
Application for continuation of contempt proceedings granted; costs awarded to plaintiff/applicant.
Orders
- The court finds that John Wangongu Ndagwatha is the same person as John Kiarie, the 3rd defendant.
- Contempt proceedings to continue against John Wangongu Ndagwatha (alias John Kiarie).
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 164 of 2007
1. Land and Environmental Law
2. Subject of the main suit land
3. Civil Practice and Procedure
I: Contempt proceeding
a) Issue in question is the defendant the one and same person who is the 3rd defendant.
4. Advocate for the plaintiff – bring witness and states he is
5. Advocate for the plaintiff – states he is not the one.
6. Held: That the said John is the one and same person as John Kiarie
7. Case law – nil
8. Advocates
W.G. Kilonzo for Kilonzo & Co. Advocates for the plaintiff/applicant – present
S.K. Gichuki for Kamungi Gichigi & Burugu Advocates for the interested party-present
CHARLES NGALAKA MULINGE & 3 OTHERS.............................PLAINTIFFS
VERSUS
TAWHEED PROPEPRTIES LTD & 5 OTHERS........................DEFENDANTS
RULING
1. Background
1. The application before me concerns contempt proceedings whereby the 3rd defendant are John Kiarie is stated to have been constructing on the suit premises contrary to the orders of this court issued on the 19 July 2007.
2. There were persons on the ground that was in the process of constructing. When the process server and court Bailiff went on site one John Kiarie stated that he was in possession of the said land and would as such not vacate. He continued to construct through workers on the ground.
3. The said John Kiarie was arrested for contempt and brought to court. He claimed he was NOT JOHN KIAIRE. This court held an enquiry as to whether John Kiarie arrested is thereon and same person as the 3rd defendant and as the one calling himself John Wingongu Ndagwatha now before this court.
4. The OCS who effected arrested stated he did further investigation at the registrar of persons and confirmed that the said person amounted as defendant No.3 in this case was called John Wangongu Ndagwatha.
5. The plaintiff called witnesses who stated that the person in court referring to himself as John Wangongu Ndaguatha admittedly introduced himself to plaintiff No.1 and a law court clerk as John Kiarie. (The other witness had been seated in court during these proceeding and were rejected).
6. The said witness personally identified the defendant No.3 as the John Wangongu Ndaguatha as the defendant No.3.
7. In reply the said John Wangongu Ndagwatha denied being John Kiarie. He produced his extract from the registrar of person. His ID card had been lost. He called a witness who knew him as a fellow businessman and had in effect nothing to do with construction.
II: Finding
8. The said John Wangongu Ndagwatha produced an extract that reflected as father had a name Kiarie. He tried to deny this in the witness box but the document clearly shows the this name John Kiarie may and is an “alia”.
9. I accordingly find that John Kiarie is the one and same person as John Wangongu Ndagwatha.
10. He will now face contempt proceeding which he will be given an opportunity to defendant himself.
11. I award costs to the plaintiff/applicant.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANGAWA
JUDGE
W.G. Kilonzo for Kilonzo & Co. Advocates for the plaintiff/applicant – present
S.K. Gichuki for Kamungi Gichigi & Burugu Advocates for the interested party - present