[2018] KEELC 3486 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. PETITION NO. 14 OF 2017

JUSTUS KALII MAKAU....................................................1ST PETITIONER

MOHAMED ISMAILI ABDI(Chairman).........................2ND PETITIONER

SHADRACK GATORE MBURU(Secretary)..................3RD PETITIONER

KELVIN OCHIENG NYAMOR(Treasurer)......................4TH PETITIONER

(Suing in their own name and on behalf

of the Syokimau Residents Association)

VERSUS

LINNET ACHIENG AMALLA..........................................1ST RESPONDENT

THE COUNTY GOVERNMENT OF MACHAKOS........2ND RESPONDENT

NATIONAL ENVIRONMENT MANAGEMENT

AUTHORITY...................................................................3RD RESPONDENT

RULING

1. What is before me is the Petitioners’ Notice of Motion dated 13th October, 2017 seeking for the following orders:

a. That this Honourable Court may be pleased to issue Warrants of Arrest and commit the abovementioned person to prison for her contemptuous actions and/or omission in disobedience of the orders made by the Honourable Justice O. Angote (Mr.) on 28th September, 2017 that:

i. The 1st Respondent and her agents, servants or whomsoever acting on her behalf do halt the construction of multiple dwelling units and/or any further developments on Plot L.R. No. 12715/12673 in Syokimau pending the hearing and determination of the Petitioners’ Application dated 4th September, 2017 on 1st November, 2017.

b. That the 1st Respondent be made to show cause why she should not be committed to prison for disobedience of lawful court orders.

c. That the 1st Respondent be detained in police custody until the rising of the court.

d. That the 1st Respondent has repeatedly disobeyed orders from judicial bodies and should thus be held in contempt of court and face the consequences thereof.

e. That alternatively this Honourable Court may be pleased to sentence the 1st Respondent to serve such a jail term and simultaneously pay such a fine as this Honourable Court shall deem just and expedient.

f. That any other orders as this Honourable Court may deem just and expedient to uphold its dignity under all the circumstances of this case.

g. That the costs of this Application be provided for.

2. The Application is supported by the Affidavit of the 1st Petitioner who has deponed that on 1st November, 2017, this court issued orders directed at the 1st Respondent restraining her, her agents, servants or whomsoever acting on her behalf to stop the construction of multiple dwellings units or any further developments on plot number L.R. 12715/12673 in Syokimau, Mikato Court, pending the hearing and determination of the Application dated 4th September, 2017.

3. The 1st Applicant deponed that despite issuance of the said court orders, the 1st Respondent has continued to develop the suit property; that the court orders were served on the 1st Respondent’s advocates on 2nd October, 2017 and that the 1st Respondent had previously ignored the orders of the National Environment Tribunal to stop developing the suit land.

4. According to the 1st Petitioner, the continuing actions of the 1st Respondent to develop the suit land is meant to steal a match on the Petitioners’ suit and is also an affront to justice and the rule of law.

5. In her Replying Affidavit, the 1st Respondent deponed that she has not breached the orders of 29th September, 2017; that there are no Minutes authorizing the 1st Petitioner to commence contempt proceedings and that she was not aware of the orders of this court requiring her to stop from developing the suit land.

6. The 1st Respondent deponed that the order of this court was neither personally served upon her nor is there evidence to show that she knew about the existence of the said orders and that one can only be punished for contempt of an order if the order is endorsed with a notice informing the person he is liable to the process of execution if he disobeys the order.

7. It is the 1st Respondent’s case that the name of the process-server who served her advocate with the order has not been disclosed; that the photographs annexed on the Petitioners’ Affidavit are in breach of the provisions of the Evidence Act; that there is no tangible evidence that she disobeyed the orders of this court and that the Application should be dismissed.

8. The 1st Petitioner filed a Further Affidavit in which he stated that even after the Application for contempt was filed, the 1st Respondent continued to disobey the orders of the court by fixing steel windows and doors, slabbing the floors and plastering the walls of the building; that the 1st Respondent’s advocate acknowledged receipt of the orders of the court and that the exhibited photographs shows the 1st Respondent’s contemptuous acts.

9. With the leave of the court, the 1st Respondent filed a Reply to the Further Affidavit in which she deponed that the service of the order on her advocate was not in compliance with the law and that she should have been served with the order of the court personally.

10. According to the 1st Respondent, the Further Affidavit does not state by whom the works were being carried out and whose plot.

11. The 1st Respondent annexed on her Affidavit the Affidavit of the person supervising the construction works on L.R. No. 12715/12673 who deponed that on 3rd October, 2017, the 1st Respondent informed him of the order of the court barring any further construction works on the suit land; that the description of the construction works depicted in the Petitioners’ photographs were works which had been executed long before the order of the court was made and that the 1st Respondent is not in disobedience of the orders of the court.

Submissions:

12. The Petitioners’ advocate submitted that the order of this court was duly extracted and served upon the 1st Respondent’s advocate on 2nd October, 2017 at 9. 35a.m; that despite the said service, the 1st Respondent continued with her contemptuous actions and that the 1st Respondent is using procedural technicalities to divert the attention of the court from the real issues. The Petitioners’ advocate relied on numerous authorities which I have considered.

13. The 1st Respondent’s advocate submitted that the law provides for the personal service of the impugned order on the 1st Respondent; that the 1st Respondent was not personally served and that the 1st Respondent stopped with any further works on the suit premises when she was informed of the order of the court by her advocate on 3rd October, 2017.

14. The 1st Respondent’s advocate submitted that the photographs annexed on the Petitioners’ Affidavits are of no probative value to the case at hand; that the photographs were not introduced in accordance with the Evidence Act and that the same should be expunged from the court records.

Analysis and final orders:

15. This matter was commenced by a Petition dated 4th September, 2017. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion under a Certificate of Urgency.

16. The Notice of Motion was placed before the duty Judge on 5th September, 2017 who certified it as urgent. The court ordered that the Application should be heard inter-partes on 28th September, 2017.

17. When the matter came up for hearing on 28th September, 2017, the 1st Respondent was represented by her current advocates. On the said date and in the presence of the advocates for the Petitioners and the 1st Respondent, the court allowed prayer number 2 of the Application until 1st November, 2017. The order that the court granted on 28th September, 2017 restrained the 1st Respondents from “construction of multiple dwelling units and/or any further developments on plot number 12715/12673”. The order was to apply not only on the 1st Respondent, but also on her agents, servants or whomsoever was acting on her behalf.

18. Notwithstanding the fact that the 1st Respondent’s advocate was in court when the order was issued, the Petitioners’ advocate went out of his way and extracted the order which he served on the 1st Respondent’s advocate. The 1st Respondent acknowledged receipt of the order on 2nd October, 2017. In the letter dated 2nd October, 2017 which was received by the 1st Respondent’s advocate on the same day, the Petitioners’ advocate informed the 1st Respondent’s advocate that despite the order of 28th September, 2017, his client was still continuing with the construction of the building on the suit land.

19. The evidence before me shows that the 1st Respondent’s advocate was in court when the order of 28th September, 2017 was made. Indeed, the said advocate was duly served with the extracted order on 2nd October, 2017 and was informed by the Petitioners’ advocate to inform the 1st Respondent to abide by the said order.

20. The 1st Respondent has admitted that she was informed about the existence of the order by her advocate. According to the Affidavit of her contractor/foreman, he was informed by the 1st Respondent of the existence of the order of 28th September, 2017 on 3rd October, 2017. The 1st Respondent was therefore aware of the order of this court restraining her and her agents from continuing with the construction of the building.

21. The law on contempt does not require that service of the court orders must be personally served on the contemnor. In the case of Justus Kariuki Mate & Another vs. Martin Nyaga Wambora & Another, Civil Appeal No. 24 of 2014 (Nyeri), the Court of Appeal held as follows:

“On the other hand, however, this court has slowly and gradually moved from the position that service of the order along with the Penal Notice must be personally served on a person before contempt can be proved.”

22. Similarly, in the case of Shimmers Plaza Limited vs. National Bank of Kenya (2015) eKLR, the Court of Appeal stated that knowledge of a court order suffices to prove service and dispenses with personal service for the purposes of contempt proceedings.

23. Indeed, all the court needs to satisfy itself is that the contemnor was aware of a court order, and where the contemnor’s advocate was in court when the order was made, it is presumed that his client was also aware. In the Shimmers Plaza case (supra), the Court of Appeal held as follows:

“Would the knowledge of the Judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.”

24. Considering that the 1st Respondent’s advocate was in court on 28th September, 2017 when the order of the court was made, and on the basis of the above holding by the court, the 1st Respondent was aware of the order of the court on the same day. Other than being made aware of the order of the court on 28th September, 2017, the 1st Respondent was further notified of the order of the court on 2nd October, 2017 when her advocate was formally served with the extracted order and a letter warning her about the consequences of breaching the court order.

25. Being satisfied that the 1st Respondent was aware of the order of the court made on 28th September, 2017, the next issue that I should determine is whether the 1st Respondent is in contempt of the said orders.

26. The 1st Petitioner has annexed on his Affidavit the photographs that were taken on 26th August, 2017, 4th October, 2017 and 5th October, 2017. The only relevant photograph for the purpose of the Application is the photograph that was taken on 4th and 5th October, 2017. I say so because the orders of this court were issued on 28th September, 2017, meaning that the 1st Respondent can only be said to have been in breach of the said orders for any actions that herself or her agents did in respect to the suit land after 28th September, 2017 and not before. The photographs that were taken on 4th and 5th October, 2017 show ongoing construction on Plot No. L.R. No. 12715/12673. Indeed, the signage seen in the photograph shows that the construction was being undertaken on L.R. No. 12715/12673. The 1st Respondent has not informed the court what the man on top of the incomplete building were doing if not constructing the building.

27. It is obvious that despite the orders of 28th September, 2017 which the 1st Respondent was aware of, her agents and servants continued with developing the suit land as shown in the photographs taken on 4th October, 2017 and 5th October, 2017.

28. Even after this Application was filed and served on the 1st Respondent’s advocate on 19th October, 2017, the photographs annexed on the Petitioners’ Further Affidavit show that the erection of a wall on the top floor was being undertaken on the existing building on 10th January, 2018. Indeed, the photographs of 5th October, and 10th January, 2018 clearly show the wall that was put up by the 1st Respondent’s agents between the two dates and after the order of 28th September, 2017.

29. Instead of producing evidence by way of photographs to controvert the evidence of the Petitioners, if any, the 1st Respondent wants this court to expunge the Petitioners’ photographs from the record because they do not accord with the law. That line of a defence is not acceptable, especially where the allegations are that the alleged contemnor is undermining the authority of the court by ignoring its orders.

30. If the buildings depicted in the Petitioners’ photographs are not within the suit premises, nothing would have been difficult than the 1st Respondent bringing her own set of photographs. Having not done so, I am satisfied that the 1st Respondent, through her agents, has changed the nature of the building on the suit land by adding an extra wall on top of the building in breach of the orders of the court.

31. As has been stated time and again, it is the unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.(See Hadkinson vs. Hadkison (1952) ALL ER 567). The 1st Respondent has not abided by that unqualified obligation. Consequently, the 1st Respondent should be punished in accordance with the law, for her contemptuous actions which went on even after the current Application was filed.

32. For those reasons, I direct that the 1st Respondent do appear in this court on a date to be given by the court for mitigation and sentence.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF APRIL, 2018.

O.A. ANGOTE

JUDGE