[2020] KEHC 7496 (KLR)
The court found that the Respondents were aware of the consent order as it was entered voluntarily with their counsel present. However, there was no conclusive evidence that the Respondents were present during the survey exercise or that they willfully disobeyed the order, as the surveyor's report did not indicate...
Source-derived case information.
- Citation
- [2020] KEHC 7496 (KLR)
- Parties
- Applicant: Priscilla Nafula Ndumia; Applicant: Kedius Kezza Ndumia; Respondent: Njoroge Mungai; Respondent: Wycliffe Simiyu Wamalwa; Respondent: Nicodemus Ngarari
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 67 of 2012
- Procedural Posture
- Succession Cause / Ruling on Contempt Application
- Outcome
- Application for contempt dismissed; costs awarded to Applicants.
- Judges
- HK Chemitei
- Legal Topics
- Contempt of Court, Enforcement of Court Orders, Succession Disputes, Land Subdivision, Survey Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priscilla Nafula Ndumia
Applicant
Kedius Kezza Ndumia
Applicant
Njoroge Mungai
Respondent
Wycliffe Simiyu Wamalwa
Respondent
Nicodemus Ngarari
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the Respondents should be cited for contempt of court for disobeying the consent order regarding subdivision of the estate land.
- 2 Whether the Respondents were aware of and willfully disobeyed the court order.
- 3 Whether the absence of evidence of the Respondents' presence during the survey exercise affects the contempt application.
Ratio Decidendi
The court found that the Respondents were aware of the consent order as it was entered voluntarily with their counsel present. However, there was no conclusive evidence that the Respondents were present during the survey exercise or that they willfully disobeyed the order, as the surveyor's report did not indicate their presence or provide minutes of the exercise. Given the lack of direct evidence of willful disobedience, the court granted the Respondents the benefit of doubt and declined to cite them for contempt. Nonetheless, the court ordered that all parties remain on their respective portions as shown by the surveyors, and that any removed beacons be replaced at the Respondents'...
Court Disposition
Application for contempt dismissed; costs awarded to Applicants.
Orders
- Respondents are not cited for contempt at this time.
- Each party shall remain on the portion as shown by the surveyors.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 67 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE FRANCIS MUTHUI ALIAS JOHN NDUMA MUTHUI - (DECEASED)
PRISCILLA NAFULA NDUMIA................1ST PETITIONER/APPLICANT
KEDIUS KEZZA NDUMIA.........................2ND PETITIONER/APPLICANT
VERSES
NJOROGE MUNGAI & OTHERS.......................................RESPONDENTS
RULING
1. In their Notice of Motion dated 28th May, 2019 the Applicants pray that the Respondents namely NJOROGE MUNGAI, WYCLIFFE SIMIYU WAMALWA and NICODEMUS NGARARI be cited for contempt for disobedience of the court orders dated 16th October, 2018 and that they should be punished. The affidavit of KEDIUS KEZZA NDUMIA in support of the same is dated 28th May, 2019.
2. The Applicants have attached a copy of the consent order dated 24th October, 2018 in which the surveyors were to go on land parcel number UASIN GISHU/ELLAHRE SETTLEMENT SCHEME/124 and carry out a subdivision exercise as agreed by the parties. It then appears that despite the said exercise which was consented by the parties on record the respondent flagrantly disobeyed the boundaries which were placed and proceeded to plough the land as well as removing the beacons placed therein.
3. There is as well a criminal charge facing some of the Respondents as per the charge sheet annexed to the application. The outcome of the said criminal proceedings has however not been attached.
4. The Respondents through the replying affidavit of WYCLIFE SIMIYU sworn on 18th July, 2019 on his own behalf and on behalf of the rest of the Respondents have denied any knowledge of the consent order that they breached. They have gone ahead to blame their counsel on record who recorded the consent. They have also denied the criminal charges which in any event were not related to the case at hand.
5. The court has perused the application as well as the submissions by counsel on record. The contempt proceedings are ordinarily serious for they are quasi criminal in nature and the prove is always high.
6. It is the position of this court that the Respondents were aware of the court order as the same was entered voluntarily with their then counsel on record present. They have admitted as much and if they had any problem they should at least at the earliest opportunity have applied to set it aside or have it reviewed.
7. The only saving grace for the Respondents is that although the survey report is on record, there is no evidence that they were present during the exercise. The Surveyors did not indicate that during the exercise the Respondents were present as there are no notes. The letter to the area Chief dated 3rd December, 2018 by the County Surveyor suggest that he went to the ground.
8. The court takes cognisance that several times the matter came up before the court and there was no objection raised by the Respondents. None of the parties voiced their concerns about the survey report. It would have been necessary though for the surveyor to have included the minutes of what transpired on the day he went to the scene beside the production of the sketch map.
9. Be it as it may, this court shall grant the Respondents the benefit of doubt. They shall not be cited for contempt for now. Nonetheless, each of the parties should remain on the portion as shown by the surveyors and any beacons removed should be replaced at the cost of the Respondents. Should they have any problems with the report then they shall be at liberty to apply.
10. The Applicants shall have the costs of this application.
Dated, signed and delivered at Kitale in open court this 10th day of March, 2020.
________________
H. K. CHEMITEI
JUDGE
10/03/2020
In the presence of:-
Nakitare holding brief for Khaoya
Kibe holding brief for Simiyu for Applicant
Court Assistant- Silvia
Ruling read in open court