[2006] KEHC 3203 (KLR)
The court found that the consent order recorded on 16/3/2005 was clear in preserving the status quo, namely Selly Jemutai's occupation of the disputed land parcels. The pleadings and affidavits established that Selly was in occupation at the time the suit was filed and when the consent was entered. Esther Jepkemei...
Source-derived case information.
- Citation
- [2006] KEHC 3203 (KLR)
- Parties
- Plaintiff: Esther Jepkemei Sugut; Defendant: Selly Jemutai; Defendant: Kilibwoni Land Disputes Tribunal; Defendant: The Nandi District Land Registrar; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 96 of 2004
- Procedural Posture
- Civil Suit / Ruling on Contempt Application
- Outcome
- Application for committal for contempt allowed. Esther Jepkemei Sugut committed to civil jail for two months.
- Judges
- JW Gacheche
- Legal Topics
- Contempt of Court, Status Quo Orders, Land Occupation Disputes, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Jepkemei Sugut
Plaintiff
Selly Jemutai
Defendant
Kilibwoni Land Disputes Tribunal
Defendant
The Nandi District Land Registrar
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Contempt Application
Legal Issues
- 1 Whether Esther Jepkemei Sugut disobeyed a court order preserving the status quo regarding occupation of land parcels NANDI/LESSOS/452 and 469.
- 2 Whether the consent order was clear and enforceable for purposes of contempt proceedings.
- 3 Whether the conduct of Esther Jepkemei Sugut amounted to contempt of court warranting committal to civil jail.
Ratio Decidendi
The court found that the consent order recorded on 16/3/2005 was clear in preserving the status quo, namely Selly Jemutai's occupation of the disputed land parcels. The pleadings and affidavits established that Selly was in occupation at the time the suit was filed and when the consent was entered. Esther Jepkemei Sugut's subsequent interference with the land, including cultivation of a portion, constituted a violation of the court order. The court emphasized that clarity of the order and the parties' own pleadings left no ambiguity as to the status to be maintained. Esther's actions, coupled with her failure to deny the allegations or the service of the penal notice, amounted to contempt...
Court Disposition
Application for committal for contempt allowed. Esther Jepkemei Sugut committed to civil jail for two months.
Orders
- Esther Jepkemei Sugut to serve two months imprisonment for contempt of court.
- Status quo of Selly Jemutai's occupation of NANDI/LESSOS/452 and 469 to be maintained pending determination of the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 96 of 2004
ESTHER JEPKEMEI SUGUT ……………………………………..………………………………… PLAINTIFF
VERSUS
SELLY JEMUTAI ……………………………………………………………………………… 1ST DEFENDANT
KILIBWONILANDDISPUTES TRIBUNAL ………………..........................……………… 2ND DEFENDANT
THE NANDI DISTICT LAND REGISTRAR ………………..........................……………… 3RD DEFENDANT
THE ATTORNEY GENERAL …………………………………….....……………………… 4TH DEFENDANT
R U L I N G
Esther Jemutai Sugut, Selly Jemutai and the Attorney General who are the plaintiff, the 1st and the 4th defendants herein respectively recorded the following consent order in this court on 16/3/2005.
“(a) The status quo namely, the 1st Defendants occupation of NANDI/LESSOS/452 and 469 be preserved pending the hearing and final determination of this suit.
(b)There be a stay of execution of the decree issued in Kapsabet PMCC Land Case 39/2001 pending the hearing and determination of this suit.
(c)The Plaintiff to file a reply to defence and defence to counterclaim as well as a further affidavit within the next 14 days.
(d)The 1st defendant to file a reply to the defence to the counter claim within 7 days from the date of service.
(e)Both the Plaintiff and the Defendant will not commit any acts of wastage of the land parcels in question.”
The said consent order followed an application by Selly Jemutai, who had prayed for an order to restrain Esther Jemutai Sugut by way of a temporary injunction either by herself, servants, employees, and or agents from trespassing onto, cultivating, alienating, wasting and or in any other way dealing with land parcels NANDI/LESSOS 452 and NANDI/LESSOS/469 (hereinafter referred to as “the subject parcels”) pending the hearing and determination of her application and thereafter pending the hearing and determination of her counterclaim (sic).
Selly who is now back to court seeks for an order to have Esther committed to civil jail for six months on the basis of the grounds that despite the court having ordered that status quo be maintained, Esther has either personally or through her servants and agents flagrantly and without any reasonable cause and or justification disobeyed the order, which acts are in Selly’s contention, contemptuous and for which Esther ought to be punished accordingly.
In instances where an order is issued by the court it is imperative that it be clear and free from any sort of ambiguity, otherwise it would be difficult to enforce and in which case it would be an uphill task to prove that a party who it is claimed has flouted it, is in contempt of court. This standard would of necessity apply to orders which require that the status quo be maintained.
It is for that reason that I find that it is necessary that I establish what the status of the parties vis a vis the subject parcels was at the time when they entered into the aforementioned consent order. In view of the fact that no evidence has been adduced in this matter, I can only refer to the pleadings, it being trite that parties are bound by their pleadings and in which case, I would not expect any deviation there from.
A look at the plaint, reveals that at the time when Esther filed this suit in July 2004. she acknowledged the fact that Selly was in occupation of the subject parcels which she was then cultivating. Esther therefore sought an order for eviction, and in support of her application for injunction to issue against Selly, which she had filed simultaneously with the plaint, she had deponed that “the 1st defendant has now moved into the disputed parcels of land and is presently occupying my house erected on parcel No. andi/Lessos/469 ……………… That further, the 1st defendant with the assistance of her agents has been cultivating the said parcels of land ………”
Though Esther alleged that Selly’s action amounted to trespass, the latter who had obtained a decree in her favour over the subject parcels, following a decision by the Kilibwoni land Disputes Tribunal, claims that she resides on the parcels as of right.
With that background, and bearing in mind the fact that the aforementioned consent order is still on record, and is still valid, the only logical conclusion would be that it is Selly who was in occupation prior to the institution of this suit, and who was in occupation at the time when the consent order was recorded. In my mind that was the status that should have been maintained.
In view of the above, I find that it should have been Selly who should have remained in occupation of the subject parcels pending the hearing and determination of the suit, any interference with the said parcels by Esther who has neither denied having cultivated a portion of 9 acres of the subject parcels in 2005, nor has she denied having been served with the penal notice, amounts to contempt of court and for which reason, I do order that she serves two months imprisonment.
Dated and delivered at Eldoret this 14th day of March 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
Mr. Magare for the 1st respondent, Mr. Were for the applicant
No appearance for the 4th respondent