[2017] KEELC 3347 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC CIVIL SUIT NO. 167 OF 2014

LAZARUS WANJOHI WAIRAGU……………....PLAINTIFF/APPLICANT

VERSUS

COUNTY GOVT. OF KAJIADO…….....1ST DEFENDANT/RESPONDENT

JOSEPH GACHIGI MURAGE ……......2ND DEFENDANT/RESPONDENT

RULING

1. In the Application dated 19th July, 2016, the Plaintiff is seeking for the following orders:

a. That pending the hearing of the Application herein inter-parties, this Honourable Court be pleased to order and or direct the Officer Commanding Ongata Rongai Police Station to ensure that the Defendants/Respondents comply with the orders of the court made on the 20th day of January, 2015 by stopping any excavation, construction and removing the excavator and the personnel from the suit land known as Plot No. 720-Residential, Ongata Rongai Trading Centre forthwith.

b. That this Honourable Court be pleased to find that the Defendants/Respondents are in violation of the orders of the court made on the 20th day of January, 2015 and accordingly punish them by imposing a jail term of six (6) months upon each of them, and or issue any other orders that the court may find appropriate in the circumstances.

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

2. The Application is premised on the grounds that on 20th January, 2015, this court made and recorded orders of injunction by consent and in the presence of counsels for both parties; that on 16th July, 2016, the Defendants invaded the suit land and that on 18th July, 2016, the Defendants started excavating the suit property in total disobedience of the orders of the court.

3. The Plaintiff has deponed that it moved to this court for protection when the Defendants invaded the suit property on 14th November, 2014 and commenced illegal eviction of the Plaintiff on a parcel of land known as Plot No. 720-Residential, Ongata Rongai Trading Centre.

4. It is the Plaintiff’s deposition that despite the consent order of 20th January, 2015, the Defendants invaded the suit property on 16th July, 2016, hoarded the suit land by way of iron sheets and proceeded to excavate the suit property.

5. The Plaintiff deponed that unless drastic measures are taken against the Defendants, they will continue to disobey the orders of the court and that the orders being sought should be granted to protect the authority and dignity of the court.

6. In a Further Affidavit, the Plaintiff deponed that it has emerged that the 2nd Defendant sold the suit property to a Mr. Philip Yego on 4th August, 2015 in violation of the orders of the court; that Mr. Yego has since reported the issue of the fraudulent sale of the suit property to him by the 2nd Defendant and that the 2nd Defendant has deliberately disobeyed the orders of the court.

7. In response, the 1st Defendant’s County Secretary deponed that the dispute herein is between the Plaintiff and the 2nd Defendant; that the order being referred to has never been served on the 1st Defendant and that he is not aware of the violation of the said order by the 1st Defendant.

8. The 2nd Defendant deponed that when the matter came up for hearing on 20th January, 2015, he was not present in court; that his advocate had informed him that the matter was only coming up for the hearing of an Application and that his advocate was to revert to him later with the outcome.

9. The 2nd Defendant deponed that on 20th January, 2015, his advocate informed him through the phone that the orders of 16th December, 2014 had been extended to the effect that neither him nor the Plaintiff was to do anything on the suit premises until the suit is heard.

10. It is the 2nd Defendant’s case that thereafter, the matter went into a limbo; that as of 19th July, 2016, there were no orders obtaining by dint of the provisions of Order 40 Rule 6 of the Civil Procedure Rules and that in any event, the impugned order was not personally served on him.

11. In his Further Affidavit, the 2nd Defendant deponed that it is false to allege that the orders of the court were explained to him; that the approvals alluded to by the Plaintiff were issued in the year 2016 after the injunctive orders had lapsed by the operation of the law and that he has never been served with the orders that were extracted on 19th July, 2016.

12. According to the 2nd Defendant, the Plaintiff should seek for the extension of the orders that were made on 20th January, 2015 and set down the suit for hearing.

13. In his submissions, the Plaintiff’s advocate submitted that the 2nd Defendant confirmed in his Replying Affidavit that he was briefed about the consent order that was recorded in court; that it is the 2nd Defendant who gave express instructions to his counsel to record the said consent and that a party to a consent is presumed to have knowledge of the terms and import of the consent.

14. The Plaintiff’s counsel submitted that a party who is aware of the order of the court need not be personally served with a copy of the order and a penal notice; that the 2nd Defendant disobeyed the order of the court by selling the suit property and that the 2nd Defendant is not remorseful at all.

15. The Plaintiff’s counsel relied on several authorities which I have considered.

16. The 1st Defendant’s counsel deponed that the consent order was only extracted on 19th July, 2016; that the same was never served on the 1st Defendant and that it is improper to cite the 1st Defendant for contempt of an order that it was never served with.

17. The 2nd Defendant’s counsel submitted that this being a civil suit, there is no law that allows the involvement of the police; that there is no evidence that there is a threat to public peace and that the police need not be involved in this matter.

18. On the issue of whether the 2nd Defendant is in contempt of the order of the court, counsel submitted that as at 16th July, 2016, there were no injunctive orders in place; that the orders that were granted by the court lapsed by the operation of the law (Order 40 Rule 6 of the Civil Procedure Rules) and that once an injunction is given, the same can only remain valid for twelve (12) months.

19. According to the 2nd Defendant’s counsel, the injunctive order having been made on 20th January, 2015, the same lapsed on 19th January, 2016; that the actions being complained of took place six (6) months after the orders had lapsed and that a party cannot be cited for breaching that which does not exist.

20. The 2nd Defendant’s advocate submitted that in any event, the impugned order was only extracted on 19th July, 2016 and that it does not bear a panel notice; that the order has never been served on the 2nd Defendant; that as a general rule, an order must be served on a party and that personal service can only be dispensed with if it is proved that the contemnor was notified of the order.

21. Counsel submitted that the 2nd Defendant has denied that he was notified of the order that was made in his absence; that the Application before the court does not set out the grounds on which it is premised and that failure to comply with the rules leads to the collapse of an Application to commit someone for contempt.

22. The only issue that is before me for determination is whether the Defendants are in contempt of the order of the court that was made on 20th January, 2015, and further, whether the Officer Commanding Ongata Rongai Police Station should enforce the said order.

23. The record in this matter shows that when the Plaintiff’s Application dated 17th November, 2014 came up for hearing on 24th November, 2014, the court granted to the Applicant prayer numbers 2 and 3 “ until further orders of the court.” The Application was fixed for hearing inter-partes on 20th January, 2015.

24. The prayers that the court granted to the Plaintiff on 24th November, 2014 restrained the Defendants from trespassing on Plot No. 720 Residential in Ongata Rongai Trading Centre and from selling the said property.

25. The 2nd Defendant was aggrieved with the orders of 24th November, 2014. The record shows that the 2nd Defendant filed an Application dated 5th December, 2014 in which he sought to set aside the orders of 24th November, 2014.

26. When the Plaintiff’s Application dated 17th November, 2014 came up for hearing on 20th January, 2015, the record shows that the Plaintiff’s and the 2nd Defendant’s advocate entered into a consent which was recorded by the court as follows:

“By consent, the Plaintiff and the 2nd Defendant, themselves, agents, servants, representatives or any other person claiming under them be and are hereby restrained from constructing, erecting any structures, developing, building, selling, transferring or assigning in any manner all that parcel of land known as Plot No. 720 Residential within Ongata Rongai Town Centre pending the hearing and determination of the suit. Mention on 24th February, 2015 for pre-trial direction. Costs of the Application to be in the cause.”

27. With the above consent recorded by the consent of the parties, the record shows that the two advocates counter-signed the order which was then adopted by the court.

28. For one reason or the other, as it often happens, the matter was not fixed for the hearing of the main suit.

29. The Plaintiff has deponed that on 18th July, 2016, and while the order of 20th January, 2015 was subsisting, he noticed that the Defendants or their representatives had commenced excavating the suit property. The Plaintiff took the photographs of the said excavation which he has annexed on his Affidavit.

30. Upon investigating on the actual person that was undertaking the excavation of the suit land, the Plaintiff discovered that the 2nd Defendant had sold the suit property to a Mr. Philip Yego who had obtained a licence from NEMA to undertake construction on the suit land.

31. The Plaintiff has annexed on his Further Affidavit a copy of the “Replying Affidavit” that was sworn by Mr. Philip Yego in National Environment Tribunal Case No. 187 of 2016 in which Mr. Yego deponed that he purchased the suit property from the 2nd Defendant on 4th August, 2015.

32. The said Mr. Yego further deponed that upon purchasing the suit land, he obtained a licence from NEMA whereafter he commenced the excavation of the land for the purpose of developing it.

33. The 2nd Defendant has not denied the depositions of Mr. Yego that it is him (the 2nd Defendant) who sold to Mr. Yego the suit property on 4th August, 2015.

34. According to the 2nd Defendant, he was not personally served with the order of 20th January, 2015; that in any event the said order was only extracted on 19th July, 2016 and that by the time the order was being extracted, the same had lapsed by operation of the law.

35. As I have indicated above, the injunctive order that was issued by the court on 20th January, 2015 was by the consent of the advocates of the Plaintiff and the 2nd Defendant.

36. Indeed, the 2nd Defendant has admitted in his Replying Affidavit that after the said consent was entered into, his advocate duly informed him of the same. The 2nd Defendant deponed as follows:

“That on the 20th January, 2015, my advocate did notify me through phone that the earlier orders that we had obtained on the 16th December, 2014 had been extended to the extent that neither me nor the Plaintiff was to do anything on the suit premises till the suit was heard and a pre-trial date was set for the 24th February, 2015 on which date neither me nor my advocate was present and the matter was given another date for the 31st March, 2015 before the Deputy Registrar.”

37. The above deposition by the 2nd Defendant is an admission by the 2nd Defendant that he was aware of the injunctive orders of 20th January, 2015. Indeed, the 2nd Defendant has not stated that the said orders were ambiguous, and even if they were, he never sought to set them aside.

38. The 2nd Defendant has also not denied that he is the one who instructed his advocate to enter into the consent of 20th January, 2015.

39. The law relating to the serving of a court order has now been settled. In the case of Shimmers Plaza Limited vs. National Bank of Kenya Limited (2015) eKLR, the Court of Appeal approved the emerging jurisprudence that established that personal service of a court order for the purposes of contempt proceedings is not mandatory as long as the court satisfies itself that the contemnor was aware of the order.

40. In the Shimmers Plaza Ltd(supra) case, the court cited with approval the holding of Lenaola J (as he was then)in Basil Criticos vs. Attorney General & others (2012) eKLR where the judge held as follows:

“The law has changed and as it stands today knowledge supercedes personal service… where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary.”

41. The Court of Appeal in the Shimmers Plaza Ltd (supra)case also quoted with approval its own decision in the case of Justus Kariuki Mate & Another vs. Martin Nyaga Wambora & Another Civil Appeal No. 24 of 2014 (Nyeri) where it was held as follows:

“It is important however, that the court satisfies itself beyond any shadow of doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty.”

42. Indeed, the fact that the 2nd Defendant’s advocate recorded the consent of 20th January, 2017 bound the 2nd Defendant (See Commercial Bank of Africa vs. Isaac Kamau Ndirangu, Civil Appeal No. 157 of 1991). It was therefore not necessary for the Plaintiff to extract the said consent order and serve it upon the 2nd Defendant.

43. Having admitted that he was made aware of the orders of 20th January, 2015 and in view of the fact that the impugned order was entered into by the consent of the 2nd Defendant and the Plaintiff, I find that the issue of extracting the order and serving the same on the 2nd Defendant was not necessary. The 2nd Defendant was bound by the consent order which he instructed his advocate to enter into.

44. The 2nd Defendant has deponed that in any event, the order of 20th January, 2015 lapsed by the operation of the law on 19th January, 2016.

45. It is true that Order 40 Rule 6 of the Civil Procedure Rules provides that where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve (12) months from the date of the grant, the injunction lapses “unless for any sufficient reason the court orders otherwise.”

46. Order 40 Rule 6 is clear that an injunction ought to lapse if a suit is not determined within twelve (12) months, unless the court orders otherwise.

47. The import of the words “unless the court orders otherwise” is that the court can allow an injunction to subsist for more than twelve (12) months.

48. The impugned consent order in this matter was clear that the order was to remain in force until the hearing and determination of the suit, meaning that the parties agreed, and the court ordered, that the said injunction was to remain in place way beyond the requisite twelve (12) months. That was the agreement between the parties, which agreement was adopted as an order of the court.

49. In addition to the above, this court interpreted the provisions of Order 40 Rule 6 of the Civil Procedure Rules in the case of Machakos ELC Case No. 195 of 2000, Wilfred Munyao Ndalana vs. Nicholas Muli Kimeu & Another, as follows:

“7. Although Order 40 Rule 6 of the Civil Procedure Rules provides that an injunctive order will lapse after the expiry of twelve (12) months, the said order should be read alongside the provisions of Section 3A of the Civil Procedure Act which provides that the court has the inherent powers to issue any order as may be necessary for the ends of justice.

8. Where a court issues a temporary injunction “pending the hearing and determination of the suit”, such an order cannot be varied on the basis of the provision of Order 40 Rule 6, unless the court itself does so.

9. In my view, the provision of Order 40 Rule 6 of the Civil Procedure Rules comes to play only where the court is silent on when the injunction would lapse.”

50. Having ordered that the injunctive order was to remain in place until the suit is heard, the 2nd Defendant cannot be heard to argue that the said order lapsed automatically after the lapse of twelve (12) months.

51. Indeed, if the 2nd Defendant was of the view that the court should not have issued an injunction “pending the hearing of the suit”, then he should have applied to set aside the said order after the lapse of twelve (12) months from the date when the order was granted.

52. Having not set aside the order, the 2nd Defendant was bound by the order of the court until when the suit would have been heard and determined. His argument that he could deal with the suit property in any manner that he deemed fit after the lapse of twelve (12) months is not only mischievous but also an affront to the authority and dignity of the court.

53. As I have already stated above, the evidence before this court shows that the 2nd Defendant sold the suit property to Mr. Philip Yego during the pendency of the suit and contrary to the orders of this court.

54. In fact, the 2nd Defendant did not bother to inform Mr. Yego that there was a suit pending in court between himself and the Plaintiff.

55. Unbeknown to Mr. Yego of the order of the court, Mr. Yego proceeded to excavate the suit land for the purpose of developing the same.

56. The above chronology of events, and the interpretation of the facts and the law leads me to only one conclusion, that the 2nd Defendant is in contempt of the orders of this court of 20th January, 2015.

57. The 1st Defendant did not participate in the consent order of 20th January, 2015. Indeed, there is no evidence that its officers were aware of the said order or that they disobeyed the order.

58. For those reasons, I find that the 2nd Defendant is in contempt of the orders of 20th January, 2015 and should be punished. The said punishment shall await the 2nd Defendant’s mitigation.

59. The court however declines to involve the police in this matter at this stage, considering that this is a civil matter.

60. The 2nd Defendant shall pay the costs of the Application.

DATED AND DELIVERED AT MACHAKOS THIS 24TH DAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE