[2018] KEHC 8852 (KLR)
The court found that the applicant failed to prove, firstly, that the respondent was properly served with the court order and penal notice, and secondly, that the respondent was positively identified as the person who cultivated the land and constructed structures on it. Due to these deficiencies in evidence, the...
Source-derived case information.
- Citation
- [2018] KEHC 8852 (KLR)
- Parties
- Plaintiff: Joshua Andala Masingila; Defendant: Marita Nasipondi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 156 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Contempt of Court, Service of Process, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Andala Masingila
Plaintiff
Marita Nasipondi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondent was properly served with the court order and penal notice.
- 2 Whether the respondent disobeyed the court order by cultivating and constructing structures on the suit land.
- 3 Whether the respondent should be committed to civil jail for contempt of court.
Ratio Decidendi
The court found that the applicant failed to prove, firstly, that the respondent was properly served with the court order and penal notice, and secondly, that the respondent was positively identified as the person who cultivated the land and constructed structures on it. Due to these deficiencies in evidence, the application for contempt failed. The court emphasized the necessity of proper service and clear identification of the contemnor before granting orders for committal to civil jail.
Court Disposition
application dismissed
Orders
- The application for committal for contempt is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA
ELC. CASE NO. 156 OF 2016.
JOSHUA ANDALA MASINGILA..................PLAINTIFF
VERSUS.
MARITA NASIPONDI.................................DEFENDANT
RULING.
[1]. This application is brought under Sec. 5 of the Judicature Act Cap 8 Laws of Kenya and Sec. 1A 3A and 63 of the Civil Procedure Act and Order 51 of the Civil Procedure Act. The applicant seeks for orders that the respondent Marita Nasipondi to be committed to Civil jail for 6 months for disobeying this courts orders. That the defendant be denied Courts audience until she purges her contempt.
[2]. The application is based on the fact that the defendant has disobeyed the Courts order of 21/3/2017. Which had been extracted and served upon her together with a Penal Notice and that the order was served upon her on 22/3/2017. That she has cultivated and constructed structures on the suit land.
[3]. The respondent denied having been served. She denied that she was guilty of the acts complained of. It was argued that it was not the respondent who cultivated the land and/or put the structures on the land.
[4]. After perusing the application by the applicant and the annextures annexed therein, I am not fully convinced firstly, that the respondent was properly served, secondly I am not convinced that the respondent has been positively identified as the person who cultivated the land. Consequently this application fails.
The parties should fix this application on merit. There shall be no order as to costs.
Ruling read in Open Court.
Dated at Bungoma this 10th day ofJanuary, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Chemutai - Court Assistant
Mr. Were for Mr. Wafula for the Defendant/Respondent
S. Wanyama for the Plaintiff/Applicant