[2022] KEHC 15403 (KLR)

Kishoyian v Kishayian & another (Petition E002 of 2022) [2022] KEHC 15403 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15403 (KLR)

Republic of Kenya

In the High Court at Narok

Petition E002 of 2022

F Gikonyo, J

November 16, 2022

Between

Agnes Nalotuesha Kishoyian

Applicant

and

Daniel Letowuon Kishayian

1st Respondent

Joseph Erickson Nkuito

2nd Respondent

Ruling

Contempt of Court 1. Before me for determination is an application dated October 27, 2022. The application is brought under section 5(1) of the Judicature, Sections 1A and 3A of the Civil Procedure Act, Order 51 Rule 1, And Order 40 Rule 3(1) of the Civil Procedure Rules, 2010.

2. The petitioner/applicant is seeking the following orders;i.Spentii.That the court be pleased to commit the 1st and 2nd respondents herein to jail and /or order them to pay a fine for violating a valid order issued by this court on the 7th day of march 2022. iii.That the court be pleased to order the 2nd respondent to surrender the original title curved out in violation of a valid court order to the court within five days to avoid further dealings in the matrimonial land.iv.That the court be pleased to order the 1st respondent to surrender to court a copy of the resultant original title deed of the matrimonial land following the illegal curving out of a portion thereof.v.That the court be pleased to nullify and/or revoke the subdivision of land known as Cismara/Olokurto/ 1769 and subsequent transfer to the 2nd respondent in total violation and disregard of a valid court order.vi.That the court be pleased to summon the land registrar Narok to appear in person in court and explain circumstances under which the property Cismara/Olokurto /1769 was subdivided and transferred to the 2nd respondent in violation of the orders of the court and in spite of caution being active on the parcel.vii.That the respondents do bear the costs of this application.

3. The application is based on the grounds set out on the face of the application and is supported by the affidavit of Agnes Nalotuesha Kishoyian, the petitioner/applicant herein.

4. The application is brought on the grounds that the court issued orders prohibiting dealing in the matrimonial land Cismara/Olokurto/ 1769 on March 7, 2022. The orders were served upon all parties as well as the relevant lands offices as ordered. An affidavit of service dated March 14, 2022 was filed. In total disobedience of the court order, the respondents went ahead and proceeded to process a title deed curved out of her matrimonial land where she resides. The petitioner/applicant argues that the 2nd respondent who is an area chief had threatened to curve out a portion of land despite any court’s orders and has actualized the threat. She fears that the area chief is likely to further violate the orders if he is not punished. She urged this court to ensure the observance and respect of the due process of law the contempt and disobedience of the orders have occasioned the applicant’s loss and threatened the loss of her only source of livelihood. She does not have an alternative home for herself and her nine children. The violations have taken place despite a caution placed on the suit parcel of land.

5. On November 3, 2022, this court ordered and directed that the application is certified as urgent and that the application be served upon the respondents immediately for a hearing virtually on November 14, 2022.

6. The 1st and 2nd respondents were served with copies of hearing notices, an application under certificate of urgency, a notice of motion, and a supporting affidavit with three annexures thereon. The service was evidenced by an affidavit of service sworn by Richard Koech on November 10, 2022 and filed in court on the same day.

7. The respondents have not filed any replies to the application dated October 27, 2022.

8. On November 14, 2022 the respondents and their advocates were not present in court for the hearing of the application. However, the same proceeded as scheduled. Ms Saika advocate for the petitioner/applicant urged this court to grant orders of committal to jail as well as for deposit of titles in court to preserve suit property. She further stated that the other orders could be canvassed through written submissions. She requested the summons to the land registrar Narok North to explain the circumstances that led to subdivision and transfer despite a court order issued on March 7, 2022 prohibiting dealing on the land as well as a caution placed on the land by the petitioner.

Analysis and Determination. 9. This court on March 7, 2022 issued the following orders which have formed the basis of the application herein.1. That the application is hereby certified urgent.2. That a temporary injunction is hereby issued restraining the 1st and 2nd respondent or any other person from subdividing, selling or charging or transferring, or doing anything or dealing in any manner detrimental to the property known as Cismara/ Olokurto/ 1769 until this application is heard inter partes. The relevant land control board survey office as well as the lands registry be served with this order.3. That the application be served forthwith. The respondents to file and serve replies to the application within 14 days of service.4. That hearing inter partes shall be on March 22, 2022.

10. The applicant claims that the contemnors acted in violation of these orders and is seeking, among other things, their committal to civil jail.

The Law on Contempt 11. The Law and procedure for contempt of court is governed by Section 5 of the Judicature Act which provides as follows:1. "The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts."

12. See the Court of Appeal in Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR.

13. Therefore, this court has the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England. The procedure for contempt for the High Court of Justice in England also applies in these proceedings.

14. Rule 81. 4, 81. 5, 81. 7, and 81. 8 of the English Civil Procedure Rules (Amendment No 3) Rules, 2020 provides for the requirements of a contempt application, the manner of service of the application, directions for hearing of contempt application, and hearings of such applications.

15. Under the applicable rules, the court has power, inter aliato direct the manner of the hearing of the application which may include directions on the attendance of witnesses and oral evidence, as it considers appropriate. In the exercise of this power, it may direct that the witnesses, if any, attend and give oral evidence or produce a document. It may also determine the matter by way of written representations. Further, the Court may summon the contemnor or a third party concerned or witness to appear before the court, and may, in appropriate circumstances, compel attendance of any person concerned through coercive mechanisms provided in law such as a warrant of arrest. However, the Court may not compel the contemnor to give evidence- and I suspect this is in line with the right to remain silent granted contempt proceedings are quasi-criminal in nature and would entail loss of personal liberty or other criminal or punitive sanctions.

Summons To Contemnors 16. Considering the seriousness with which the Court takes contempt of court proceedings, and the punitive nature of sanctions that may be imposed, the court will require the contemnors to appear before the court during the next appointed date. I will first employ soft mechanism; summons to attend court. thus, I direct a summons to issue to the Contemnors to attend court during the next appointed date. If they fail to so attend, the court will not hesitate to issue a warrant of arrest to bring them to court under compulsion of the law.

17. Accordingly, I defer the decision on the request for committal to civil jail of the contemnors until they appear as directed.

Nullification of Subdivision and Surrender of Title 18. From the material on record, the subdivision and issuance of titles in respect of the matrimonial property was done in violation of court orders. Anything done in violation of the law is a nullity. Accordingly, I hereby nullify and revoke the subdivision of land known as Cismara/Olokurto/1769 and subsequent transfer to the 2nd respondent which was in total violation and disregard of a valid court order.

19. In consequence thereof, I direct and order the 2nd respondent to surrender to the Deputy Registrar, Narok High Court within 14 days, the original title curved out of the matrimonial property herein in violation of a valid court order.

20. Similarly, I order and direct the 1st respondent to surrender to the Deputy Registrar, Narok High Court within 14 days, a copy of the resultant original title deed of the matrimonial land following the illegal curving out of a portion thereof.

Summons to Land Registrar, Narok North 21. On the basis of the finding of the court that transactions done here were in violation of a court order, and therefore, a nullity, there is absolute necessity to, and I hereby issue a summon to the Land, Registrar, Narok North to appear before the court in person on the next appointed date, and explain circumstances in which the property Cismara/Olokurto /1769 was subdivided and transferred to the 2nd respondent in violation of the orders of the court and in spite of a caution registered on the parcel.

22. The next appointed date is January 16, 2023.

23. Costs of the application to be borne by the respondents. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 16THDAY OF NOVEMBER, 2022_______________________F. Gikonyo M.JudgeIn the presence of:1. Mr. Kasaso – CA2. Ms. Saika for the Petitioner3. Ms. Mogere for Respondents