[2022] KEELC 2140 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. PETITION NO. 137 OF 2018

IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 40 AND 64 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS

UNDER ARTICLES 20(2), 21(1), 27, 40(1) AND 40(3) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE LAND ACT, 2012 AND THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF COMPULSORY ACQUISITION OF LAND REFERENCE NUMBER 22423,

MACHAKOS WITHOUT DUE PROCESS AND IN CONTRAVENTION OF THE

CONSTITUTION OF KENYA, 2010

BETWEEN

DAVID GITAU THAIRU................................................................................PETITIONER

AND

THE COUNTY GOVERNMENT OF MACHAKOS...........................1ST RESPONDENT

THE GOVERNOR, MACHAKOS COUNTY GOVERNMENT.......2ND RESPONDENT

THE HON. ATTORNEY GENERAL...................................................3RD RESPONDENT

RULING

What is before Court for determination are two Notice of Motion applications dated the 2nd and 9th September, 2021 respectively. In the application dated the 2nd September, 2021, the 1st and 2nd Respondents seeks the following orders:

1. Spent

2. The warrants of arrest issued by the acting Deputy Registrar of this Honourable Court on 1st September, 2021 against the 2nd Respondent/Applicant be set aside and their execution stayed pending the inter partes hearing of this application.

3. The warrants of arrest issued by the Court on 1st September, 2021 against the 2nd Respondent/Applicant be set aside and their execution stayed pending the hearing and determination of this application.

4. The 1st and 2nd Respondents/Applicants be granted leave to respond to the Notice to Show Cause issued by the Court on 28th July, and

5. The costs of this application be borne by the Petitioner/Respondent.

The application was premised on the grounds on the face of it and the supporting affidavit of DR. BENJAMIN MUNYWOKI MUSAU where he confirms that warrants of arrest were issued against the 2nd Respondent on 1st September, 2021 as he failed to attend court, yet he was represented by Counsel. He contends that the Notice to Show Cause (NTSC) was only served upon the 2nd Respondent’s advocates on 20th August, 2021 and they required time to respond. He insists the Hon. Magistrate did not have jurisdiction to issue the Warrants of Arrest against the 2nd Respondent as the acting Deputy Registrar, Environment and Land Court as this is a Petition which had been heard and determined by a Judge. Further, the 2nd Respondent was condemned unheard and infringes on his rights. He explains that the 2nd Respondent is neither an accounting officer nor pay point of the 1st Respondent and cannot personally make any orders in respect to the payment of the outstanding amounts in his personal capacity. Further, the Judgement and Decree were not personally directed to the 2nd Respondent and the Respondents have a reasonable cause as to why the judgement has not been complied with. He reiterates that the Petitioner has not made any efforts to follow up with the relevant departments of the 1st Respondent for compliance with the Judgement as advised by the Court in the ruling of the Contempt application.

The application is opposed by the Petitioner DAVID GITAU THAIRU where he deposes that the supporting affidavit is defective as it is sworn by an advocate yet there are contentious issues. He insists the application is frivolous, vexatious, an abuse of the court process and full of misrepresentation of material facts. Further, that the interim orders were fraudulently obtained. He avers that the 2nd Respondent was duly served with the Hearing Notice and Notice to Show Cause at the 1st Respondent’s offices. He explains that the Deputy Registrar was discharging his administrative duties as mandated by law and hence had power to issue a Warrant of Arrest. He states that judgement was also passed against the 2nd Respondent and it is appropriate to commence execution proceedings against him. He confirms that he does not have any claim against the 3rd Respondent since he had abandoned proceedings against it prior to delivery of judgement.

In the application dated the 9th September, 2021, the Petitioner seeks the following orders:

1. Spent

2. That the Honourable Court be pleased to set aside/discharge/vacate orders issued on 3rd September, 2021.

3. That the Warrant of Arrest issued on 1st September, 2021 by Hon. C. N. Ondieki to remain in force and be enforced against the 2nd Respondent as directed.

4. That upon inter parte hearing of this application, the 1st and 2nd Respondents’ application dated 2nd September, 2021 be struck out/or dismissed for abuse of court process.

5. That costs of this application be borne by the 1st and 2nd Respondents.

The application is premised on the grounds on the face of it and the supporting affidavit of DAVID GITAU THAIRU where he avers that judgement was entered in his favour on 30th July, 2020 and despite several efforts, the Respondents have defied orders including directions by failing to comply with the court orders. He explains that he commenced execution of the Decree against the 2nd Respondent and was issued with a Notice to Show Cause on 28th July, 2021 which was served upon him. He claims despite service upon the 2nd Respondent, he failed to appear in court and it is only his advocate who appeared in court on 1st September, 2021 and failed to satisfy the court as to why the Notice to Show Cause (NTSC) should not be executed against him. Further, that subsequently the Court issued a Warrant of Arrest against the 2nd Respondent. He states that the 2nd Respondent’s Advocates on record B. M. Musau pursuant to the Supporting affidavit and Certificate of Urgency application misrepresented to the Court by concealing material facts purposely to obtain interim orders he was seeking. Further, the Court issued interim orders lifting/suspending the Warrant of Arrest issued on 1st September, 2021 and these actions continue to frustrate him from enjoying the fruits of his judgement.

The 1st and 2nd Respondents opposed the application by filing a replying affidavit sworn by JAMES KATHILI the County Attorney where he deposes that they have largely complied with the Judgement including Decree issued by the Court by removing the soil dumped on the Petitioner’s land as well as restoring the said land. He insists the 2nd Respondent is not the Accounting Officer of the 1st Respondent. He claims the Advocate swore the supporting affidavit upon instructions of the 1st and 2nd Respondents. Further, there is absolutely no mistake or error in the affidavit to render it defective. He avers that there is no evidence to prove the Notice to Show Cause (NTSC) was served upon the 2nd Respondent. Further, that the Deputy Registrar in execution of his duties is specifically excluded from dealing and/or issuing orders under Order 22 Rule 28 of the Civil Procedure Rules. Further, the Petitioner has not made any efforts to get the damages paid. He contends that payment is a bureaucratic process and subject to funds from the National Treasury. He reiterates that they instructed a Counsel to hold their brief when the Notice to Show Cause (NTSC) proceeded before the Deputy Registrar. Further, the law requires the Notice to Show Cause (NTSC) to be served personally upon a party.

The two applications were canvassed by way of written submissions.

Analysis and Determination

Upon consideration of the two Notice of Motion applications dated the 2nd and 9th September, 2021 respectively including the respective Affidavits and rivalling submissions, the following are the issues for determination:

Whether the Deputy Registrar had jurisdiction to issue the warrant of arrest against the 2nd Respondent.

Whether the Orders issued on 3rd September, 2021 should be varied and or set aside.

I will deal with both issues jointly, however, before I do so, I will highlight an excerpt from the impugned Judgement dated 30th July, 2020 which is the issue in contention herein that culminated in the issuance of the NTSC and thereafter a Warrant of Arrest.

‘54(b) An order do issue directing the 1st and 2nd Respondents by themselves, their servants or agents to remove all deposits of wastes, soil and other debris deposited by the said 1st and 2nd Respondents on the Petitioner’s Land Reference Number 23423, Machakos and to restore the land to the original state it was before the Respondents committed acts of waste and trespass thereon.

(e) The Petitioner to be paid by the 1st Respondent exemplary damages in the sum of Kenya Shillings five (5) Million.’

It is the Petitioner’s contention that he has sought to enforce the Judgement in vain as the 1st and 2nd Respondents have frustrated his efforts. Further, he proceeded to extract a Notice to Show Cause (NTSC) against the 2nd Respondent who failed to personally attend court after which the Deputy Registrar issued a Warrant of Arrest. The 1st and 2nd Respondents insist the 2nd Respondent was not personally served, is not the Accounting Officer for the 1st Respondent and that the Deputy Registrar did not have jurisdiction to issue Warrants of Arrest. First and foremost, it is not in dispute that the impugned judgement was appealed from. Further, it has not emerged whether the 2nd Respondent ever challenged being the Accounting Officer for the 1st Respondent during the hearing of this suit.

Order 49 Rule 5 of the Civil Procedure Rules provides that:

‘Formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court may be made by the registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, but in the event of any objection being taken to the proceedings thereunder, all further proceedings shall be before a judge.’

While Order 49, Rule 7(1) (b) (x) of the Civil Procedure Rules stipulates that:

‘(1) The Registrar may - (b) hear and determine an application made under the following Orders and rules (x) Order 22 other than under rules 28, and 75;’

Order 22 Rule 28 of the Civil Procedure Rules provides that:

‘(1) Where any party against whom a decree for the specific performance of a contract, or for an injunction, has been passed, has had an opportunity of obeying the decree, and has wilfully failed to obey it; the decree may be enforced by his detention in prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation the decree may be enforced by the attachment of the property of the corporation. (3) Where any attachment under subrule (1) or (2) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder, or some other person appointed by the court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree.’

I note in this instance, the Deputy Registrar had issued a Notice to Show Cause against the 2nd Respondent in respect to payment of exemplary damages in line with enforcement of Court’s Decree. Further, the Deputy Registrar proceeded to issue a Warrant of Arrest. From a reading of the legal provisions I have cited above, especially Order 22 Rule 28 of the Civil Procedure Rules, It is clear that the Deputy Registrar did not have the jurisdiction to hear and determine an application for Notice to show cause (NTSC) where a warrant of arrest was issued. Further, as per the Constitution, the 2nd Respondent is not the Accounting Officer for the 1st Respondent and on perusal of the judgement, I note it is actually the 1st Respondent that was ordered to pay exemplary damages. Insofar as I concur with the Petitioner that the 2nd Respondent was indeed served, I find that the warrant issued for his arrest in respect to payment of exemplary damages was not proper. However, I note the 1st Respondent has not indicated why it has only partially enforced the Judgement/Decree but failed to pay the exemplary damages and costs to the Petitioner.

In the circumstances, I will proceed to set aside the said Warrants of Arrest and direct that the 1st Respondent’s Accounting Officer be served with a fresh Notice to show cause (NTSC) within 14 days from the date hereof, for failing to settle the decretal amount.

It is against the foregoing that I find the Application dated 2nd September, 2021 merited and will allow it. I however disallow the application dated 9th September, 2021.

On the issue of costs, I will award the same to the Petitioner for the two applications, as he is the inconvenienced party that is yet to be paid the decretal sum.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 19TH DAY OF JANUARY, 2022

CHRISTINE OCHIENG

JUDGE