[2021] KEHC 3992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO.183 0F 2013

IN THE MATTER OF THE ESTATE OF MSECHU SIMON MWATEE (DECEASED)

RISPER ATIENO MSECHU

STEPHEN OUMA MSECHU

BOB EVANS MSECHU

MERCY MWAJUMA MSECHU.................................................................APPLICANTS

VERSUS

THE PUBLIC TRUSTE..............................................................................RESPONDENT

RULING

1. The deceased herein died intestate on 13th March 2012. The Public Trustee (herein after referred to as the respondent) petitioned this Honourable court for grant of letters of administration intestate through petition filed on 10th June, 2013 supported by an affidavit sworn on 3rd June, 2013 by one Jafred Erima Maliro. Necessary consents signed by all beneficiaries in regard to the estate of the deceased who died on 13th March, 2012 were allegedly obtained.

2. The respondent listed the following persons as survivors of the deceased’s estate:

a) Maria chausiku msechu…................................widow

b) Luiza mawondo msechu….... ……….….......daughter

c) Elijah mwazighe msehu……..................................son

d) Dorah wamanya msechu……………………daughter

e) Thomas mwakio msechu….……………………...son

f) Scolastica mashaka msechu………………...daughter

g) Emma wakesho msechu…………………….daughter

h) Robert shitawa msechu…………………………...son

3. The deceased left the following assets comprising the estate at the date of his death:

Movable

a) National bank (K) ltd…………1,453. 51

b) Bank of India (K) ltd…………65,632. 85

c) Personal effect……………..…1,000. 00

Immovable

a) Plot No.336 Mwakirunge

b) Plot no.1646 ziwa La Ng’ombe

c) LR No.XV/8 Mombasa Island

d) LR No.XII/98

e) Plot No.3829/VI

f) Plot No.1425/I/MN Kongowea

g) LR No.1516 Kwale/Matuga

h) LR No.1517

i) LR No.1519

j) LR No.1520

k) Plot No.Block 1/78 Mombasa Island

4. The applicants herein filed a Notice of Motion application dated 18th November 2013 supported by the 1st applicant’s affidavit sworn 20th November, 2013 seeking to be included as the heirs and beneficiaries of the estate of the deceased. The 1st Applicant claimed to be the second wife to the deceased hence not consulted.

5. The respondent filed a replying affidavit sworn on 20th February,2014 urging the court to determine who the rightful heirs of the estate were to enable him proceed and finalize the administration and distribution of the estate. Besides, Maria Chausiku Msechu claiming to be the only widow to the deceased also filed an affidavit sworn on 19th February, 2014 opposing the said application.

6. The 1st applicant filed a supplementary affidavit sworn on 24th June, 2014 rebutting the content of Maria Chausiku Msechu’s affidavit. She however acknowledged Maria as the deceased’s widow. Maria filed a further affidavit sworn on 12th September 2014 in response to the 1st applicant’s supplementary affidavit stating that the applicants are falsely using the name of the deceased msechu to claim inheritance.

7. The applicants again filed a Notice of Motion application dated 14th August, 2015 seeking temporary injunction against the respondent, his servants, agents and or employees from dealing with, leasing, constructing, selling, wasting, intruding, trespassing, developing and/or interfering with Plot No.LR MI/XV/88/MN pending the hearing and determination of the pending application and suit. The respondent filed a replying Affidavit sworn on 3rd November, 2015 opposing the said application.

8. The respondent also filed summons dated 6th July 2018 supported by an affidavit sworn the same day seeking the following orders;

a) That this Honourable court to direct the Deputy Registrar to cause the estate of the deceased herein to be gazetted for objections.

b) That letters of administration intestate to be issued to the public trustee the petitioner herein on expiry of the stipulated period after gazettement for objection.

c) That any claim and or objection by any party and or person to be heard and determined thereafter.

9. The 1st applicant filed a replying affidavit sworn on 16th July, 2018 insisting that she and her children were beneficiaries to the estate. Subsequently, the estate was gazetted in gazette notice No.7188 of 2nd August 2019 and a grant of letters of administration intestate issued on 17th January 2020 to the Public Trustee.

10. The 1st applicant filed summons for revocation or annulment of the grant dated 24th November 2020 seeking the following orders:

1) spent

2) That this honourable court be pleased to issue an order of injunction restraining the Public Trustee/Respondent by himself and or his agents, servants and or anyone working for him from demolishing, constructing, selling and or disposing, interfering in any other manner with Plot No.Mombasa /Ziwa La Ng’ombe scheme /1472 situated within Mombasa county pending hearing and determination of the application inter-parties.

3) That the grant of letters of administration of the above named MSECHU SIMON MWATEE who died on 10th June,2013 be revoked or annulled,

4) That fresh letters of administration be issued to Rispa Atieno Ouma, dispense with its publication in the Kenya gazette and confirm the said letters of administration,

5) That the Honourable Court do issue an order directing OCS Nyali Police Station to ensure that the subject property is protected from demolition and that the applicants /tenants enjoy quiet possession and use of the same.

6) That this honourable court be pleased to issue any other order it deems fit in the circumstances.

7) That the cost of application be in the cause.

11. The court considered the said application on the same day thus certifying it urgent. Prayer two granting a temporary injunction was allowed. The same was then fixed for interpartes hearing on 8th December, 2020.

12. Pursuant to the issuance and service of the said restraining orders which were allegedly disobeyed, the applicants came back to this honourable court vide an application dated 2nd December ,2020 supported by an affidavit sworn by Rispa Atieno Ouma seeking the following orders:

1) spent

2) That Mr,J E.Maliro an officer of the Public Trustee /Respondent herein be cited for contempt of the order of this honourable court issued on 24th November ,2020 and be committed to civil prison for such a period as this honourable court may deem fit and just. In that,the said Mr.J.E Maliro,has disobeyed the court order issued by this Honourable Court on the 24th November,2020.

3) That an order do issue directing the OCS Nyali police station to ensure that third parties /land grabbers /agents/assigns do not interfere with the property known as plot No.Mombasa/ ziwa la ng’ombe scheme/1477 and to certify and /or ensure that the order of this honourable court issued on the 24th November,2020 is adhered to and /or complied with.

4) An order that the costs of these contempt proceedings be borne by the said public trustee (the respondent).

13. The application which is anchored on Article 48 and 159(2) of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and order 40 Rule 3 and51 Rule 50 of the Civil Procedure Rules is based on the grounds that the Public Trustee /Respondent being a party to the court order issued on the 24th November,2020 has refused to abide by the said terms of the order by demolishing the applicants’ homes and is currently putting up a new structure on the said plot albeit illegally.

14. That his action has shown disdain and is likely to bring disrepute to this Honourable Court. That despite having been a party and even after being served with this Honorable court’s order, the Public Trustee/Respondent has acted with disdain by refusing to heed to the order but has instead frustrated the applicant by violating in totalthe court order which should be enforced forthwith.

15. The Public Trustee/respondent filed a replying affidavit sworn on 7th December, 2020 terming the applicants’ application and affidavit as unmerited; made in bad faith with the sole intention of embarrassing the office and himself; full of falsehood and that he would be seeking court’s leave to cross examine the applicant.

16. He further stated that the suit premises were demolished by the heirs of the estate from 20th to 23rd November 2020 before the orders of injunction were issued on 24th November 2020. That the applicant misled the court by seeking for orders of injunction but concealed material facts by not enjoining the actual persons who demolished the suit premises.

17. That he learnt of the demolition when he was served with the application and court order. That the family through Elijah Mwazighe Msechu informed him they had on their own volition decided as a family to demolish the suit premises so that they could erect modern structure which will earn the estate income in form of rent and that they demolished the suit premises from 20th -23rd November, 2020. He denied any involvement in the demolition exercise.

18. The Public Trustee/Respondent was directed by the court to visit the suit premises with a view to ascertaining the status of the property in question and inform the heirs to stop any further construction of the suit premises pending the hearing and determination of this matter. He filed a supplementary affidavit sworn on 16th December, 2020 stating that “the suit premises are structures comprising of four shops/stalls in front and several rental houses behind; the outside walls are completed and the structure roofed with iron sheets; its fitted with doors and windows (without louvers) and, that at the time of my visit there was no construction works going on at the site” (see para 5 and photos attached)

19. He reiterated the position asserted in his replying affidavit thus emphasizing on the fact that the applicants knew the alleged goons who demolished the house but did not mention them in their application.

20. The applicants filed a further affidavit sworn on 11th December, 2020 stating that the public trustee is the administrator of the estate of Msechu Simon Mwatee(deceased) hence inter meddling by Elijah Mwazighe Msechu can only be by consent and /or approval of the public trustee (para 3). That the affidavit by Elijah Mwazighe Msechu is defective and ought to be struck out as the same is sworn by him and the respondent.

21. In their submissions dated 9th February 2021, the applicants submitted that their application is pursuant to orders of this Honourable court issued on 24th November 2020 and that the respondent was served with the said orders on 25th November,2020 but disobeyed the same hence prompting the applicants to file this application for contempt. That the court should note that the admission of paragraph 4 and 10 of the respondent’s replying affidavit sworn on 7th December, 2020 by itself amounts to intermeddling with the estate of the deceased contrary to section 45 of the law of Succession Act.

22. The applicants further submitted that at para 5 of the supplementary affidavit sworn on 16th November 2020, the respondent admitted that part of the construction is actually complete although the constructor has since stopped after the court issued directions on 17th December, 2020.

23. Further, learned counsel opined that the affidavit and photos annexed to the affidavit in support of the application is sufficient evidence that the Respondent acted in contempt of court and therefore should be held liable to avoid dishonor to the honourable court. In support of this proposition, counsel placed reliance in the case of Raeli Tapsabei vs David Rono (2015) eKLR and urged the honourable court to find that the respondent is indeed in contempt of the court order.

24. The respondent filed submissions dated 16th February 2021 thus urging; that the application for contempt is unmerited and it amounts to an abuse of the court process and should be dismissed with costs. That he is a law abiding citizen who has never disobeyed any court order or sanctioned any demolitions as alleged or at all.

25. He further submitted that his dealings with the estate is purely on his capacity as an officer working under the office of the public trustee. That the persons alleged to have demolished the premises and erected the alleged new structures are not agents of the public trustee nor his. That the heirs of the estate of the deceased are not agents nor servants of the public trustee and he has no control over them and therefore cannot be held liable for their action. He went further to state that the applicants did not produce any approvals to ascertain who applied for the alleged demolition and construction of the new structures. That the applicants knew who were behind the alleged demolition of the suit premises even before the issuance of injunction orders.

26. The respondent opined that; the applicants misled the court while seeking orders of injunction; the applicants concealed material facts by failing to enjoin the persons who allegedly demolished the suit premises with a view of misdirecting this Honourable court to grant orders of injunction; the applicants has failed to establish that the respondent has willingly disobeyed a court order or at all to warrant grant of the orders sought; the application lacks merit and ought to be dismissed with costs.

Analysis and determination

27. I have considered the application herein, affidavit in support and the responses thereof. I have also considered rival submissions by both parties. The only Issue that emerge for determination is whether the applicants have established a case to warrant the respondent be held liable of contempt of the court order made and issued on 24th November 2020.

28. The applicants have come to this court for contempt of court orders against the Respondent. I am fully aware that the applicable law on contempt of court would have been the Contempt of Court Act No.46 Of 2016. However, the same was declared invalid on 9th November 2018 for lack of public participation as required by Articles 10 and 118 (b) of the Constitution as well as encroaching on the independence of the judiciary by the High Court. See Kenya Human Rights Commission vs Attorney General & Another [2018] e KLRby Mwita J.

29. In view of the above declaration, the applicable provisions of law that operated before the enactment of the said Act comes to play. In that regard, I am guided by the holding in the case of Samuel M.N Mweru & others vs National Land Commission & 2 others [2020]eKLR in which Mativo J reverted to the provisions of the law that operated before the enactment of the nullified Contempt of Court Act (Section5 of the Judicature Act) to avoid a lacuna in the enforcement of court’s orders. Also see Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 others,[2014]eKLR where the court underscored Section 5 of the Judicature Act cap 8 as the law applicable in prosecuting contempt proceedings.

30. It is trite law that before a court can condemn a litigant for disobedience of a court order, the applicant must establish four salient elements inter alia;

(a) The terms of the order (or injunction or undertaking) were clear, unambiguous and binding on the defendant.

(b) The defendant had knowledge of or proper notice of the terms of the order

(c) The defendant has acted in breach of the terms of the order; and

(d) The defendant’s conduct was deliberate.

31. In the case of Tribe Hotel Ltd Vs Josephat Cosman Onyango (2018) e KLR the court underscored the need for the applicant seeking contempt orders in his favour against a contemnor to prove existence of willful disobedience of the court order. Further, in the case of Republic v Cabinet Secretary Ministry of Education and another Exparte Thadayo Obando(2018)eKLRthe court held that, to sustain committal for contempt of court, an order must be clear and unambiguous.

32. It is however worth noting that, the standard of proof in contempt proceedings is higher than that on a balance of probability and not as high as proof beyond reasonable doubt. To buttress this position, I draw guidance from the court of appeal decision in the case of Micheal Sistu Mwaura Kamau v Director of Public Prosecutions and 4 others (2018) EklrandMititika v Baharini Farm Ltd (1985)eKLR.

33. It is incumbent upon the applicant in this case to prove that Mr. Maliro was served and made aware of the orders of 24th November 2020 and willfully disobeyed the same by demolishing the structures in question. There is no dispute that the respondent was served with orders in question on 25th November 2020. According to the respondent, the orders were obtained long after the act complained of had happened between 20th and 23rd November 2020. This fact has not been controverted.

34. The applicants have not established the exact date the structures were destroyed. Further, the applicant acknowledged in their supplementary affidavit that heirs to the estate acted with the knowledge and consent of the respondent. This is an admission that the respondent did not demolish the building as a person hence cannot be held liable through proxy.

35. If the people who demolished the structures are known, they should be held personally liable. There is no proof that the respondent consented or condoned acts of disobedience to the court order. Whereas I agree that court orders must be upheld at all times to preserve the dignity and authority of the court, courts should as well be cautious not to unnecessarily curtail litigant’s right to liberty where there is no basis or cogent proof of such disobedience.

36. From the above analysis, it is apparent that the applicant has not met the salient ingredients in proving the act of contempt against the respondent. The respondent is an innocent litigant who is being sacrificed at the altar of bitter family differences. Accordingly, the application is dismissed and costs to abide by the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF AUGUST, 2021

J.N .ONYIEGO

JUDGE