[2019] KEELC 2673 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 180 OF 2016 (O.S)

IN THE MATTER OF THE LAND ACT 2012

AND

IN THE MATTER OF REGISTRATION OF TITLES ACT

AND

IN THE MATTER OF THE LAND ADJUDICATION ACT

AND

IN THE MATTER OF SECTION 30 (F) AND (G) OF THE REGISTERED LAND ACT CHAPTER 300 LAWS OF KENYA

AND

IN THE MATTER OF SECTION 34 OF THE LAND TITLES ACT CHAPTER 282 LAWS OF KENYA

AND

IN THE MATTER OF SECTIONS 18 AND 38 OF THE LIMITATION OF ACTIONS ACT CHAPTER 22 LAWS OF KENYA AND ANY OTHER ENABLING PROVISION OF THE LAW

AND IN THE MATTER OF AN APPLICATION FOR ADVERSE POSSESSION OF REGISTERED LAND TITLE LR. NO. SOUTH GEM/KAMBARE/266

BETWEEN

JOHN SUKWE OTIENO……………………………….…APPLICANT

VERSUS

BENJAMIN JAKOYO OKITA……….…….…………..RESPONDENT

RULING

1. John Sukwe Otieno, the Applicant, seeks vide the motion filed and dated 15th June 2017 to have Benjamin Jakoyo Okita, , found to be in contempt of Court for disobeying the order of 10th March 2017 and to be committed to jail for a term not exceeding six (6) months. The application is based on the four (4) grounds on its face and supported by the Applicant’s affidavit sworn on the 15th June 2017. The Applicant’s case is that he obtained orders on 10th March 2017 restraining the Respondent, his employees, agents and or whomsoever serving under his orders from interfering, ploughing, selling or further engaging in activities likely to destroy crops and trees or deny him his rights, That the Respondent was served with the order as confirmed in the affidavit of service dated 6th June 2017. That the Respondent and his employees or persons serving under him, in disobedience of the order, entered and ploughed the disputed land and planted maize and beans, which are about three (3) months and as of the date of the application.

2. The application is opposed by Respondent through his replying affidavit sworn on the 14th December 2017, in which he denied having been served with the court order. That the photographs annexed to the supporting affidavit do not have his image but that of the Applicant. That he had no knowledge that the restraining order had been issued, and that the Applicant failed to disclose to the court that the Respondent and his brother live on a portion of the said land separate from the one the Applicant claims and should not be stopped from having access.

3. The Applicant and Counsel for the Respondent filed their written submissions dated 20th May 2018 and 12th November 2018 respectively.

4. The following are the issues for the court’s determinations;

a) Whether temporary injunction order was issued as alleged.

b) Whether the Applicant has shown that the Respondent either knew of the order and or was served with it before the alleged act complained off was committed.

c) Whether the Applicant has proved that the Respondent has disobeyed the order.

d) Who pays the costs.

5. The Court has carefully considered the grounds on the motion, supporting and replying affidavits, both submissions, the record and come to the following conclusion;

a)That the Applicant moved the court vide the motion dated 22nd July 2016 for injunctive orders against the Respondent. The application was served and the record of the proceedings of 15th November 2016 shows that the Respondent attended court and requested for time to file a reply. That request was granted and the application fixed for hearing on the 9th February 2017. That the record of proceedings of 9th February 2017 confirms that both the Applicant and Respondent were in court. That they both addressed the court and on confirming that the Respondent had not filed and served a reply in opposition to the motion, the same was taken as unopposed and “allowed in terms of prayer (c) pending the hearing and determination of the originating summons”. This therefore confirms that the Respondent, having been present when the order was made, had knowledge of it, irrespective whether or not he was subsequently served. [See decision in Sam Nyamweya & 3 Others vs Kenya Premier league Ltd & 2 Others [2015] eKLR, where Aburuli J, cited with approval the decision of Lenaola J, as he then was, in Basil Criticos vs Attorney General & 8 Others [2012] eKLR, on the position that “knowledge supersedes personal service….”]

b) That the affidavit of service sworn by James Otieno Okudo on the 6th June 2017 shows clearly that he served the Respondent with the “order dated 10th March 2017” on the “13th March 2017” at his home and that he knew him as he had served him before. That the court has noted the earlier affidavit of service by the same process server sworn on the 24th August 2016 on the service effected on the Respondent on the 6th August 2016. The Respondent has not disputed that previous service and noting that he did not seek to cross-examine the process server on the affidavit sworn on the 6th June 2017, the court finds no basis or reasons to doubt its contents.

c) That in view of the findings in (a) and (b) above, the court has no doubt that the Respondent had not only been present when the injunction order in terms of prayer (c) of the application dated 22nd July 2016 was issued, but also that he was subsequently served with the extracted copy issued on the 10th March 2017 on the 13th March 2017.

d) That the photographs attached to the supporting affidavit clearly shows people working on the land who the Applicant deponed at paragraph 4 included the Respondent. That the denial by the Respondent that he does to appear in the photos is nothing but a belated attempt to deny the obvious. The order issued on the 9th February 2017 was in terms of prayer (c) and has been extracted in the order issued on the 10th March 2017. The order is clear, unambiguous and capable of being executed as it required of the Respondent by himself, employee, agent, or any other person under his orders not to interfere, plough, sell or further engage in any activity likely to destroy crops and trees on the farm or deny the Applicant his rights pending the hearing and determination of the originating summons. That contrary to the requirement of the order, the Respondent went on to work on the land, and to plant crops therein which are visible on the photographs, without the authority or consent of the Applicant and without having the order set aside or reviewed. That action by the Respondent amounts to contempt of court and deserves punishment to be issued.

e) That the claim by the Respondent, through the written submission filed by his Counsel, that he resides on a portion of that land cannot amount to much as it is made from the bar. That if that was so and the Respondent who has Counsel on record, would have moved the court as appropriate to review and or set aside the order made on 9th February 2017. That until the order is set aside, reviewed or successfully appealed against, the Respondent has no choice to obey it or risk being sanctioned.

6. That flowing from the foregoing, the court finds merit in the Applicant’s motion dated and filed on the 15th June 2017. The application is allowed wit costs. The Respondent disobeyed the court order made on the 9th February 2017 and issued on the 10th March 2017 and penal sanction will be issued.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 3RD DAY OF JULY 2019

In the presence of:

Applicant Present

Respondent Present

Counsel M/s Ayieta for Omondi for

Defendant/Respondent

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE