[2022] KEHC 13854 (KLR)

In re Estate of Mohammed Toloyi Kassim (Deceased) (Succession Cause 206 of 2011) [2022] KEHC 13854 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13854 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 206 of 2011

WM Musyoka, J

October 7, 2022

Ruling

1. The application for determination is dated October 27, 2021. It is brought at the instance of Asman Matsikhu Toloi, who I shall refer heretoafter as the applicant. It seeks that the respondents, being Bakari Wesonga Kassaim, Ramadhan Mabiale Kaasim, Hassan Murunga Kassaim and Farajallah Mabiale Marama be found guilty of contempt of court with respect to the orders of March 1, 2012, notice to show cause do issue, that they be committed to civil jail for not less than 6 months, and the police to assist in enforcement of the orders.

2. The said application is founded on grounds that are set out on the face of the application, as well as in the facts deposed in the affidavit sworn on October 27, 2021, by the applicant. The grounds on the face of the application are that the order was made on February 28, 2012 by Muchemi J, and a formal order was extracted and issued, dated March 1, 2012. The respondents are said to have had either refused or neglected to obey or comply with the said order.

3. According to the affidavit in support, the order of February 28, 2012 was meant to take effect on February 1, 2012. It was to the effect that all the rents for the Busia Plots Nos. 7983/7 and 127, Koyonzo Plot No. 3 and Shibale Plots Nos. 7 and 10 were to be deposited in court pending the hearing and determination of the instant succession cause. It is averred that the said orders were stayed by the court in Busia ELC No. 149 of 2016 (OS), to enable the court seized of that cause determine ownership of the said plots, and that that determination was made in a judgment that A. Omolo J delivered on October 19, 2021. It is averred that, in that judgment, the respondents were only entitled to the Busia Plots, where the deceased also had shares. It is averred that the finalization of this succession cause was pegged on the final determination of Busia ELC No. 149 of 2016(OS), and this court is invited to give a final determination in view of the said judgment.

4. The applicant has attached to his affidavit the following documents. The first is the order made by Muchemi J., on February 28, 2012, as extracted on March 1, 2012. A letter dated March 1, 2012, addressed to all the tenants on the said plots bringing the order of February 28, 2012, as extracted on March 1, 2012, to their attention. The judgment in Busia ELC No. 149 of 2016(OS). The other annexture is the ruling delivered on October 4, 2017 by Njagi J.

5. The response to the application is by Farajallah Mabiale Murenga and Hassan Murenga Kassim, vide affidavits sworn on November 15, 2021. Farijallah Mabiale Murenga avers that he was not party to the proceedings that led to the making of the order of October 29, 2021. He also avers that he was not served with the said order. He avers that Busia Plots Nos. 7983/7 and 127 have always been occupied by members of the family of the deceased and the others. He avers that the orders of October 27, 2021 were stayed on October 4, 2017 by this court. He avers that the ELC No. 149 of 2016 had held that the said plots were held equally by a partnership of the 4 brothers. The averments by Hassan Murenga Kassim are in similar terms.

6. Directions are given on November 30, 2021, for canvassing of the application, dated October 27, 2021, by way of written submissions. Both sides have filed written submission, complete with supporting authorities.

7. These are contempt proceedings. They are quasi-criminal proceedings. It was stated, in Re Breamblevale Ltd [1969] 3 All ER 1062 (Lord Denning MR), that contempt of court is an offence of a criminal character, and it has to be proved satisfactorily, beyond reasonable doubt. See also Mutitika vs. Baharini Farm Ltd [1985] eKLR (Hancox, Nyarangi JJA & Gachuhi Ag JA). That would mean that the standard of proof of contempt of court is very high. Secondly, the due process expected in criminal proceedings must be adhered to, for the fair trial principles stated in Article 50 of the Constitution must be met.

8. The application dated October 27, 2021, is premised on Order 51 of the Civil Procedure Rules, sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Cap 21, Laws of Kenya and Article 159(2) of the Constitution. The provisions of the law under which the court exercises contempt jurisdiction have not been invoked. Order 51 only provides for filing of applications, sections 1A, 1B and 3A only provide for the inherent jurisdiction of the court, inclusive of the Oxygen rule. Section 63 is only relevant with respect to disobedience of an injunctive order, yet the order of February 28, 2012 was not an injunctive order. Article 159 of the Constitution is about the court eschewing technicalities of procedure. None of these provisions are of relevance, with respect to the application dated October 27, 2021. Contempt proceedings are provided for under section 3 of the Judicature Act, Cap 8, Laws of Kenya. The High Court has jurisdiction to punish for contempt, and the procedure to be followed, in that regard, is the law as it is in England. As indicated here above, contempt proceedings are quasi-criminal in nature, for contempt is a criminal offence, punished with criminal sanctions. Due process is critical. Fair trial principles apply before those criminal sanctions are imposed. The strict process must be adhered to. Article 159 of the Constitution cannot be applied to wish away due process in quasi-criminal proceedings of this nature. Where due process is not followed, by failure to adhere to the process started in section 5 of the Judicature Act, and the process as started in the law applicable to contempt at the High Court of England, then the fair trial principles contemplated by Article 50 of the Constitution will not have been satisfied.

9. The principle considerations in contempt proceedings were started, in Republic vs. Kenyatta University: ex parte Losem Naomi Chepkemoi [2019] eKLR (Mativo J), to be three, namely, terms of the order, knowledge of the terms, and failure by those bound by the order to comply with the said terms.

10. I will first consider the terms of the order in February 28, 2021. The order was made in Busia HCSC No. 148 of 2008. That cause was initiated in the estate of the deceased herein. That cause and the instant cause were brought together, and consolidated, by an order of this court, of February 20, 2013. The order that Muchemi J recorded, on February 28, 2012, says as follows:“All rents for Busia Plots No. 7 and 12, Plot No. 3 Koyonzo, Shibale Plot No. 7 and 10 be deposited in court pending determination of this succession cause. The order takes effect from February 1, 2012. ”

11. The terms of that order are fairly clear. The rents collected from the plots named were to be deposited in court, effective from February 1, 2012, pending the determination of the cause in the estate of the deceased herein.

12. Who was targeted by these orders? It is not clear from the face of the orders. The orders do not appear to have been founded on any application. The Advocate for the petitioners/administrators, Ms. Chunge, had informed the court that the objectors had continued to receive rent from the said plots, and she orally applied for the rents to be deposited to court. The Advocate for the objectors, Mr. Masiga, conceded to the oral application. The persons identified in those proceedings as objectors were Bakari Wesonga Kassim, Ramadhan Mabiala Kassim and Hassan Murenga Kassim. It would appear that it is to these 3 that the orders of February 28, 2012 are directed. The 3 moved the court by a summons, dated March 20, 2012, for a review of the orders, so that the orders are set aside, and the rents collected by named individuals. It would appear that the application, dated March 20, 2012, has never been determined. Farajallah Mabiale Marenga filed an application, dated November 11, 2012, seeking stay of proceedings in the instance cause, pending hearing and determination of Busia ELC No. 149 of 2016, in view of evidence that had emerged in the proceedings that the court was taking on the matter, on the joint ownership of the subject plots. In the end, Njagi J granted orders, on October 4, 2017, staying the instant proceedings, so far as they related to the subject plots, among others, pending hearing and determination of Busia ELC No. 149 of 2016. The effect of the stay of proceedings order of October 4, 2017 was to stay the orders of February 28, 2012. It would appear though that Arose Akhusama Kassim, a brother of the deceased herein, and the father of Farajallah Mabiale Marenga, were not party to any of the proceedings in the succession cause. Busia ELC No. 149 of 2016 was at the instance of Farajalla Mabiale Marenga, and sought answers as to who was entitled to the subject plots.

13. The order of February 28, 2012 were directed at Bakari Wesonga Kassim, Ramadhan Mabiala Kassim and Hassan Murenga Kassim, and going by their review application of March 20, 2012, they were aware of the terms of the order, herein their Motion to have the orders reviewed. It would appear that Farajallah Mabiale Murenga was not targeted by the order, neither was his late father, and from his filings he does not appear to have been aware or had knowledge of the terms of the said order.

14. Did the persons bound by the orders of February 28, 2012 fail to comply with those orders. There is no doubt that the said orders have never been complied with. Was there a willful or deliberate disobedience or non-compliance with the said orders? The orders of February 28, 2012 were made with the concurrence of Mr. Masiga, the Advocate for Bakari Wesonga Kassim, Ramadhan Mabiala Kassim and Hassan Murenga Kassim. It would appear that he concurred without instructions, for, on March 21, 2012, another Advocate, Mr. Kiveu, took his place as the Advocate for them, and lodged the summons for review of the said orders, dated March 20, 2012. After that, in 2017, these proceedings were stayed, so far as they related to the subject plots, pending determination of the status of the said plots in Busia ELC NO. 149 of 2016. The Environment and Land Court determined ownership of the said plots, by its judgment of October 19, 2021, where it was held that the same belonged to a partnership bringing together the deceased and Bakari Wesonga Kassim, Ramadhan Mabiala Kassim, Hassan Murenga Kassim and Arose Akhusama Kassim. The ownership of the said plots is highly contested, there is a determination by Environment and Land Court, that they are corporately owned, and there is a review application pending, on the orders of February 28, 2012. There is, therefore, no willful disobedience of the said orders, in the circumstances.

15. I am justified in coming to the above finding by holding of the court in ELC No. 149 of 2016, that the said property was belonged to a partnership and some of it was held in trust. Partnerships are regulated by and subject to Partnerships Act, No. 16 of 2012, Laws of Kenya. There are rules governing dissolution of partnerships and division of property belonging to such partnership. There are also rules relating to determination of trusts, and regulating what ought to be done with the property the subject of the terminated trust. The function and mandate of a probate court is distribution of uncontested and undisputed assets of a deceased person. That jurisdiction does not extend to dissolution of partnerships and determination of trusts, and division of assets the subject of such partnerships and trusts. Such can only be done in separate suits or proceedings, and by other courts, preferably under order 37 rules 1 of Civil Procedure Rules. These are not questions for the High Court, sitting as a succession or probate court. The property should be placed before the High Court, as a probate court, for dissolution, only after the partnership has been dissolved or the trust determined and the assets distributed. So that what is allocated to the estate herein, in those separate proceedings, is what should be placed before this court, for distribution. That should be the way forward. See In re Estate of Kamau Kinuthia [2008] eKLR (Ibrahim J) and in Re Estate of Mwangi Gikonyo (Deceased)[2017] eKLR (Waweru J).

16. The other point, of course is that the application, dated October 27, 2021, was filed barely a week after the judgment of October 19, 2021 in ELC No. 149 of 2016 was delivered. The respondents were not given a chance to comply with the orders of February 28, 2012, in view of the findings in that judgment. In any case, rather than move the court for contempt of court, in respect of the orders of February 28, 2012, the applicant should have requested the court to give directions on the way forward, in view of the judgment of October 19, 2021, for the dynamics of the matter had changed given the decree in ELC No. 149 of 2016.

17. In view of everything that I have said above, it is my finding and holding that there is no merit in the application, dated October 27, 2021. I accordingly dismiss the same. Let each party bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7th DAY OF October 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Magotsi, instructed the Magotsi & Company, Advocates for the applicant.Mr. Makokha, instructed by JP Makokha & Company, Advocates for the respondents.