[2022] KEHC 12182 (KLR)

In re Estate of William Kipkosgei Kiptum (Deceased) (Probate & Administration 59 of 2007) [2022] KEHC 12182 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12182 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 59 of 2007

EKO Ogola, J

July 18, 2022

IN THE MATTER OF THE ESTATE OF WILLIAM KIPKOSGEI KIPTUM (DECEASED AND IN THE MATTER OF AN OBJECTION TO THE MAKING OF GRANT

Between

Eunice Chebichii Kipkosgei

1st Petitioner

Violah Cheruto Kiptum

2nd Petitioner

and

Esther Jeptanui Kiptoo

1st Objector

Edna Jesang Kosgei

2nd Objector

Ruling

1. Before me for determination are two applications.

The first application 2. In the application dated 4th November, 2021 the Objectors seek the following orders;1)Spent.2)That in the interim a conservatory order do issue restraining the Petitioners, their agents and/ or any other persons acting under their instructions from trespassing and or harvesting maize crop on a portion of 20 acres comprised in land parcel No. Moiben/moiben Block 5 (merewet) 228 being occupied by the Applicants/Objectors pending the hearing of this application inter-partes.3)That a conservatory order do issue restraining the Petitioners, their agents and/ or any other persons acting under their instructions from trespassing and or harvesting maize crop on a portion of 20 acres comprised in land parcel No. Moiben/moiben Block 5 (merewet) 228 being occupied by the Applicants/Objectors.4)That the Honourable Court do order that the Applicants/Objectors harvest the maize crop on 20 acrees on the land parcel No. Moiben/moiben Block 5 (merewet) 2285)That the costs of this application be borne by the Petitioners.

3. The application is premised on the grounds on the face thereof and it is further supported by the affidavit of Esther Jeptanui Kiptoo, the 1st Objector sworn on 4th November, 2021.

4. The Objectors’ case is that on 3/2/2021 this Court permitted her to utilize a portion of 20 acres comprised in parcel of land known as Moiben/moiben Block 5 (merewet) 228 without any interference from the Petitioners. The Objector, in view of the aforementioned directive, had the legitimate expectation of ploughing the land, planting maize crop and harvesting the same and selling it for a profit of approximately Kshs. 600,000/=.

5. The Objector contends that soon after the said Court order was issued, the Petitioners herein rushed to plough the whole parcel of land including her 20 acres and planted maize thereby preventing her from utilizing the said portion as per the said Court order.

6. The Objector deposed that she has suffered great loss and damage as a result of the actions of Petitioners who acted in contravention of the orders of the Court. The Objector further deposed that the said contravention by the Petitioners was brought to the Court’s attention by application dated 1st March, 2021 which according to the Objector was dismissed on a technicality.

7. The Objector deposed that the maize planted by the Petitioners on her portion of land is now ready for harvest and the Petitioners have begun harvesting the said maize to the detriment of the Objector.

8. The Objector prays that this Court do issue conservatory orders so as restrain the Petitioners and or their agents from access to her portion of land with the view of harvesting the maize crop thereon. The Objector contends that the only way of compensating her legitimate expectation of utilizing the said 20 acres of land is by allowing her to harvest the maize crop planted by the Petitioners thereon.

9. The Objectors urged Court to allow their application as prayed.

Response 10. The application is opposed by the Petitioners. In her Replying Affidavit dated 14th December, 2021 Eunice Chebichii Kipkosgei, the 1st Petitioner averred that the Objector’s case has no merit, is frivolous, vexatious and a blatant abuse of the Court process with an ulterior motive of unjust enrichment. The Petitioners contend that the application is res-judicata and an attempt by the Objectors to re-litigate the previous contempt proceedings.

11. The Petitioners deposed that the Objectors have never been in possession or use of any portion of the land known as Moiben/Moiben Block 5 (Merewet) 28. The Petitioners further deposed that the Objectors have never brought any evidence before this Court to prove that they have been occupying and utilizing a portion measuring 20 acres of the subject land.

12. The Petitioners averred that they together with other bona fide beneficiaries of the estate of the deceased plough the said portion in the subject land. They planted maize in said portion, and have been using it ever since even during the lifetime of the deceased.

13. The Petitioners averred that the Objectors herein had commenced contempt proceedings against them for planting the said maize but the said application was dismissed for the failure to prove that the Petitioners had acted in contempt of Court orders. The Petitioners further averred that the Objectors herein had previously alleged vide their Replying Affidavit dated 5th October, 2020 that they were already occupying and utilizing a portion measuring 20 acres of the subject land but have failed in this instant application to demonstrate whether they have been evicted or removed from the alleged portion.

14. The Petitioners averred that Hon. Lady Justice O. Sewe in her Ruling delivered on 3rd February, 2021 only allowed the Objectors herein to continue utilizing a portion of 20 acres of the subject land but did not in any way obligated the petitioners to cede any portions of the said parcel of land that they were utilizing.

15. The Petitioner stated that they have since harvested their maize crop on the subject land and to the best of their knowledge, there is no more maize on the said parcel of land and hence the orders sought in the instant application will no longer have any utilitarian purpose except to serve an ulterior motive of founding a cause of action for contempt in the future.

16. The Petitioners contend that the Objectors at paragraph 8 of their Supporting Affidavit have confirmed that indeed they are already harvesting their maize on the said parcel of land and therefore it is inconceivable how they expected this Court to act retrogressively.

17. The Petitioners averred that the Objectors have not proffered an explanation as to why they had to wait for 8 months from the time they planted their maize crop in March, 2021 to the time they filed the application in November, 2021 when the crop was ready for harvesting. The Petitioners contend that the delay is inexcusable and that the Objectors are mischievously seeking to harvest petitioner’s maize in bid to obtain unjust enrichment.

The Second Application 18. The Second application is dated 10th November, 2021 and has been filed by the Petitioners herein. The Petitioners in the said application seek orders that;1. Spent.2. There be stay of the orders given on 5th November, 2021 any any further proceedings in the matter pending inter-parte hearing and determination of this application.3. The orders given and issued on 5th November, 2021 are hereby set-aside4. Costs of the Application be awarded to the Petitioners/Applicants.

19. The application is premised on the grounds on the face thereof and it is further supported by the affidavit of Eunice Chebichii Kipkosgei, the 1st Petitioner sworn on 10th November, 2021.

20. The Petitioner’s case is that on 5th November, 2021 this Court issued ex-parte orders restraining them from harvesting maize from a portion of parcel of land known as Moiben/Moiben Block 5 (Merewet) 228 allegedly occupied by the Objectors. The Petitioners averred that the above-mentioned orders were obtained through fraudulent misrepresentation of facts before this Court on the use and occupation of the subject land.

21. The Petitioners deposed that the Objectors have never been in possession or use of any portion of the land known as Moiben/Moiben Block 5 (Merewet) 28. The Petitioners further deposed that they together with other bona fide beneficiaries of the estate of the deceased plough the said portion in the subject land. The Petitioners averred they together with other bona fide beneficiaries of the deceased, planted maize on said portion and have been using it ever since even during the lifetime of the deceased.

22. The Petitioners averred that the Objectors herein had commenced contempt proceedings against them for planting the said maize but the said application was dismissed for the failure to prove that the Petitioners had acted in contempt of Court orders. The Petitioners further averred that the Objectors had previously alleged vide their Replying Affidavit dated 5th October, 2020 that they were already occupying and utilizing a portion measuring 20 acres of the subject land but have failed in this instant application to demonstrate whether they have been evicted or removed from the alleged portion.

23. The Petitioners state that their maize on the subject parcel is now ready and that they have since commenced harvesting and According to the Petitioners there is potential abuse of the Court orders sought herein by the Objectors to frustrate the harvesting could lead to damage of the produce occasioning extensive losses to them.

24. The Petitioners contend that the Objectors are mischievously seeking to harvest petitioner’s maize for unjust enrichment.

25. The Petitioners maintain that there is an imminent risk that the Objectors will abuse the orders sought in the instant application to concoct contempt proceedings so as to blackmail them into acceding to their mischievous and malicious intentions.

Response 26. The application was opposed by the Objectors vide the Replying Affidavit sworn on 6th December, 2021 by Edna Jepsang Kosgei, the 2nd Objector herein.

27. The 2nd Objector averred that she is aware that there exist orders of the Courts dated 3rd February, 2021 that allowed her and the 1st objector to utilize 20 acres of the subject land. The Objectors contend that in the Ruling dated 14th June, 2021 the Court had found that there was no evidence that Petitioners who are the Respondents therein had encroached into the 20 acres being cultivated by the Objectors. In view of the above the Objectors deposed that it is absurd and dishonest for the Petitioners to allege that they never possessed or utilized any portion of the subject land.

28. According to the Objectors, the Petitioner in this instant application are talking this Court in circles, Having denied in the previous application that they encroached onto their 20 acres of land, they cannot now say that they cultivated the same and were entitled to harvest the same.

29. The Objectors contend that Court orders are not made in vain. They urged Court to visit the subject land so as to ascertain the 20 acres that was set aside for them and the 30 acres that was left for Petitioners and the portion on which the maize was planted and whether the maize is in the farm or not.

30. According to the Objectors it does not really matter when the land was ploughed. What matters is whether there was an order allowing them to utilize the 20 acres of the subject land. The Objector’s case is that when the order of 3rd February, 2021 was made the Petitioners had no business either continuing the use the land or having any activity on the said portion. The Objectors maintain that if the Petitioners had offered any evidence to Court that they had planted maize thereon, contempt proceedings would surely have been found. The Objectors contend that their application was dismissed because there was no evidence that the Petitioner had encroached onto their 20 acres but now the Petitioners are confirming that they indeed planted maize on the said portion.

31. The Objectors averred that the land is now fenced to show their portion and attempts by the Petitioners to set aside fencing orders that had been issued in CMCC Misc App No. 161 of 2021 were dismissed.

32. The Objectors’ case is that the orders herein dated 5th November, 2021 really flow directly from the orders of this Court dated 3rd February, 2021 and further orders dated 14th June 2020 by this Court.

33. The Objectors contends that in view of the orders dated 5th November, 2021 having been breached by the Petitioners herein and the maize having already been harvested, the setting aside of these orders will only be for record purposes, if indeed the orders were not preserving anything as the Petitioners would argue.

34. Both applications were canvassed by way of written submissions.

Determination 35. I have perused and considered the two applications together with the respective responses thereto. I have similarly perused and considered the rival submissions and authorities placed before me by the Learned Counsel appearing for the parties herein. The only issue for determination is whether the applications before me have been overtaken by events.

36. The effect of the interim orders as against the Petitioners and or their agents is clear from its reading. The Petitioners were barred from trespassing and or/ harvesting maize crop on a portion of 20 acres comprised in land parcel No. Moiben/moiben Block 5 (merewet) 228 being occupied by the Objectors pending the hearing and determination of the application inter-partes.

37. It is also crystal clear from the reading of the said orders that besides restraining the Petitioners from trespassing onto the subject land no one was supposed to harvest the maize crop on the said portion of land. The interim orders were not granted to the Petitioners per se but in their nature were to preserve the subject-matter of the suit. The object of the interim orders granted on 5th November, 2021 was to preserve the subject matter until the application is heard and determined.

38. Those interim orders were to remain in force until the application dated 4th November, 2021 was heard and finally determined. A Court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with.

39. An order passed by a competent court, whether interim or final has to be obeyed without any reservation. The Constitutional Court of South Africa, in Kristen Carla Burchell v. Barry Grant Burchell underlined the importance to the rule of law, of compliance with court orders in the following terms:-“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”

40. From the pleadings before me it is clear that the Objectors’ application dated 4th November, 2021 being the first application herein, has since been overtaken by events in view of the Petitioners admitting that they have since harvested the maize crop on land parcel No. Moiben/moiben Block 5 (merewet) 228.

41. He who comes to equity must do so with clean hands. The Petitioners herein in the application dated 10th November, 2021 have come to Court in the guise of seeking to set aside orders of this court that were issued on 5th November, 2021. The Petitioners by their own admission have stated that they have already harvested the maize crop on the subject land. As it is,the second application has equally been overtaken by events.

42. In the circumstances, it is my view that the prayers in both applications have already been spent and therefore the orders sought are not capable of enforcement. Accordingly, I hereby dismiss application dated 4th November, 2021 and the application dated 10th November, 2021. Costs of both applications are awarded to objectors.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JULY 2022. ………………………………..……………….E. K. OGOLAJUDGE