[2022] KEHC 11725 (KLR)

Khaemba (Suing as the Legal Representative and Administrator of the Estate of Eluid Sachida Wangusi) v Agricultural Finance Corporation & 2 others; Shinali (Interested Party) (Civil Case 5 of 2019) [2022] KEHC 11725 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11725 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Case 5 of 2019

WM Musyoka, J

June 10, 2022

Between

Eliud Makhakha Khaemba (Suing as the Legal Representative and Administrator of the Estate of Eluid Sachida Wangusi)

Plaintiff

and

Agricultural Finance Corporation

1st Defendant

District Land Registrar, Kakamega County

2nd Defendant

Attorney General

3rd Defendant

and

Benard Shinali

Interested Party

Ruling

1. The application for determination is the Motion, dated September 8, 2020, in which the plaintiff seeks joinder of Hon. Benard Shinali as an interested party to the proceedings, an order fining the proposed interested party a sum of Kshs. 200, 000. 00 or his imprisonment for six months for contempt of the court order of November 4, 2019, and an order of injunction restraining the proposed interested party from trespassing on or dealing with Kakamega/Soy/215, which gave rise to Kakamega/Soy/2777, 2778, 2779 and 2780.

2. In the supporting affidavit, sworn on September 8, 2020, the plaintiff avers that after the interested party was served with the order that the court made on November 4, 2019, he invaded the land and trespassed on it. He uprooted the maize crop that the plaintiff had planted and forcefully planted sugarcane on the suit land without any justifiable cause. The plaintiff then made a report to the ward agricultural officer, who then assessed the damage caused. The proposed interested party is accused of continuing in contempt of the said order. The plaintiff asserts that he has been in possession and occupation of the suit land, and it was on that basis that he had obtained orders on quiet possession and occupation of the land pending hearing and disposal of the suit. He avers that the said proposed interested party should be sanctioned by the court for contempt of court. He has attached to that affidavit an extract of the order made on 4th November 2019, an affidavit of service to show service of that order to the defendants and the proposed interested party, a letter requesting for assessment of damage, and an assessment of the damage or loss at Kshs. 158, 950. 00.

3. The said application was placed before me on September 14, 2020, and I gave directions on its service. It came up for inter partes hearing on March 18, 2021. It was unopposed, and I was urged to grant the orders sought. I declined the invitation, and only allowed the payer for joinder. I directed that the other prayer, for sentencing of the interested party to pay a fine or for his committal to jail, to be canvassed by way of written submissions. The matter was mentioned several times thereafter, but none of the parties filed written submissions, and I reserved the matter for ruling.

4. The order that allegedly gave rise to these proceedings was made by consent of the parties on November 4, 2019, for maintenance of status quo pending hearing and determination of the suit. The parties who were party to that consent order were the plaintiff and the 1st defendant. The status quo order was predicated on an application, dated March 19, 2019, which had sought a temporary injunction to restrain trespass, subdivision, transfer, alienation or any other dealing with Kakamega/Soy/215, which gave rise to Kakamega/Soy/2777, 2778, 2779 and 2780.

5. At the time the status quo order of November 4, 2019was being recorded, the interested party was not a party to the proceedings. I note that he was served with the formal order, extracted from the consent order of November 4, 2019, or, at any rate, it is alleged that he was served, and the disobedience or non-compliance with the orders is said to have arisen after that alleged service. To the extent that the interested party was not a party to the proceedings, as at the date the orders, said to have been disobeyed, were made, the said orders could not be binding on him. They were only binding on the parties that were on record then, and particularly the 1st defendant, who was party to the consent order. The interested party cannot, therefore, be liable for contempt of an order arising from a suit in which he was not a party to when the order was made. Adding the interested party to the suit, after the alleged contempt of the court order, does not cure the anomaly, as the said joinder, on March 18, 2021, did not have the effect of the orders of November 4, 2019 applying to him retrospectively. Punishing, him for acts that were done before the order applied to him, would be unfair and unjust.

6. The second issue relates to the competence of the contempt application itself, which was the primary reason that I declined to grant orders allowing it, on the basis that it was unopposed, as I was persuaded that it was not competent. The application invites me to sentence the interested party for contempt of court. What the plaintiff is doing is to put the cart before the horse. In criminal and quasi-criminal proceedings, for civil contempt proceedings fall in that category, a person has to be tried first, for the court to adjudge as to whether he is guilty of what is alleged against him, before he is convicted and sentenced. The interested party herein has not been tried and convicted of contempt of court, before he can be sentenced. The plaintiff is rushing to have him sentenced when there is no conviction. What the plaintiff should have done first was to move this court to have the interested party, once he was made a party to these proceedings, and had violated or breached the order in question, he had been served with it, cited for contempt of the court order. The plaintiff would have to lay material before the court to show that the order in question had been made, that it bound the interested party, the interested party had been served with it, and that he had breached or violated it. If the court is persuaded that indeed the order in question existed, the interested party was bound by it, it was served on him, it was capable of being violated or breached, and that he had breached it, then it would have him attend court to show cause why he should not be cited for contempt of court, and it is only after he is cited, and he fails to explain or exonerate himself or purge the contempt that the issue of his sentencing should arise. There has to be a trial, in other words, founded on affidavits and documents, and where necessary a viva voce hearing, where oral statements are made and witnesses cross-examined, should the parties desire or ask for it, followed by a ruling, wherein the alleged contemnor is either acquitted or convicted of the contempt, based on the material that will have been placed before the court. As it is, the application, dated September 8, 2020, is premature.

7. Thirdly, the procedure with respect to civil contempt is that stated in the Judicature Act, Cap 8, Laws of Kenya, at section 5. The procedure is that currently in force in England. An attempt was made, in the recent past, to have Kenyan legislation governing the subject, and section 5 of the Judicature Act was even repealed by Act No. 46 of 2016, but that came a cropper, after the courts struck down that law, which meant reversion to the earlier position, the law of England, which governs the procedure at the English High Court. The process for civil contempt at the High Court of England is akin to Judicial Review. File a statutory statement, which stands for the pleadings. Supported by an affidavit verifying the facts, which carries the evidence. File a substantive Motion. These proceedings, although filed within the cause, are not interlocutory, because they are not civil in nature, unlike the main suit, but quasi-criminal. That explains the need to file pleadings, over and above those filed already in the main suit, to form the basis or foundation for the contempt proceedings, for the alleged contemnor cannot be tried under the pleadings on record, that is the plaint and defence. This procedure should be strictly adhered to, for proceedings for civil contempt are quasi-criminal in nature, and the due process expected to be observed in the criminal process should apply here. Failure to stick strictly to the procedure, would mean that due process is not followed, and the trial, with respect to contempt of court, would be vitiated, as it would be an affront to the fair trial principles set out in Article 50 of the Constitution of Kenya, 2010. The sanctions or penalties for civil contempt are criminal in nature, hence making the process quasi-criminal, and criminal sanctions ought not to be imposed on a person without due process. The plaintiff did not follow due process, and his application is, accordingly, defective and fundamentally flawed.

8. I do not think I need to say more. The application, dated September 8, 2020, is misconceived, incompetent and an abuse of the court process. It is accordingly dismissed. As it was not opposed, I shall make no orders on costs.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGA THIS 10THDAY OF JUNE,2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Nabasenge, instructed by Kutto & Kaira Nabasenge, Advocates for the plaintiff.