[2023] KEHC 24979 (KLR)

MAJK v John Mutwiri Mbijiwe t/a Bealine Auctioneers & another (Civil Appeal E022 of 2023) [2023] KEHC 24979 (KLR) (Family) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24979 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E022 of 2023

MA Odero, J

November 3, 2023

Between

MAJK

Appellant

and

John Mutwiri Mbijiwe t/a Bealine Auctioneers

1st Contemnor

FML

2nd Contemnor

Ruling

1. The Applicant herein MAJK filed in court the Notice of Motion dated 12th April 2023 seeking the following orders:-“1. Spent.2. That this Honourable court be pleased to order FML the 2nd Contemnor herein presented in court to show cause why he should not be cited and/or adjudged guilty for contempt of court orders issued on 22/03/2023 and extended on 29th March, 2023,3. That this Honourable court be pleased to commit FML, the Contemnor herein to imprisonment for a period of six months for disobeying and being in contempt of the orders of this Honourable Court issued on 29th March, 2023;4. That this Honourable court be pleased to order John Mutwiri t/a Bealine Auctioneers, the 1st Contemnor herein be presented in court to show cause why he should not be cited and/or adjudged guilty for contempt of court orders issued on 29th March 2023;5. That this Honourable court be pleased to commit John Mutwiri t/a Bealine Auctioneers; the 1st Contemnor herein to imprisonment for a period of six months for disobeying and being in contempt of the orders of this Honourable Court issued on 29th March, 2023;6. That both the 1st and 2nd Respondents/Contemnors be denied audience of court until they purge the contempt.7. The costs of the Application be borne by the 2nd Respondent.8. Any other order that the court may deem fit and just to grant.

2. The application which was premised upon Section 5 of the Judicature Act Cap 8, Laws of Kenya Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.

3. The 2nd Respondent FML opposed the application through he Replying Affidavit dated 5th May 2023. The 2nd Respondent also filed a Notice of Preliminary objection dated 21st March 2023 seeking to have the application dated 12th April 2023 struck out.

4. On 9th May 2023 the court directed that the application and the Preliminary Objection be heard together by way of written submissions. The Applicant filed the written submissions dated 12th April 2023 and 20th June 2023. The 2nd Respondent relied upon the written submissions dated 9th June 2023.

5. The 1st Respondent John Mutwiri Mbijiwe t/a Bealine Auctioneers did not file any documents at all in this matter.

Background 6. This dispute has had a very long and convoluted history in the corridors of justice. The Applicant MAJK had filed in the High Court a Notice of Motion dated 14th March 2023 seeking stay orders in respect of orders issued by the subordinate court on 13th March 2023.

7. In response the 2nd Respondent filed a Notice of Preliminary Objection dated 21st March 2023. The High Court on 22nd March 2023 directed that the ‘status quo’ be maintained pending determination of the Preliminary Objection. The orders of ‘status quo’ were extended on 19th March 2023.

8. The Applicant alleges that notwithstanding the existence of the said orders for maintenance of status quo the 2nd Respondent proceeded to instruct the 1st Respondent to forcefully evict the Applicant from the property known as Mae Ridge County Villa No. 16 on LR No. 7785/1324 (I.R.123703) (hereinafter the ‘suit property’).

9. That on 5th April 2023 the 1st Respondent evicted and /or removed the Applicant’s furniture and chattels from the suit property supervised by the Officer Commanding Station (OCS) Spring Valley Police Station.

10. The Applicant prays that this court cite the Respondents for contempt and punish them accordingly.

11. The 2nd Respondent averred that this application for contempt has been overtaken by events given that the court delivered a ruling on 24th April 2023 dismissing the Application for stay of execution and setting aside the status quo orders. Therefore according to the 2nd Respondent the removal of the Applicant from the suit property was lawful.(i)Notice of Preliminary Objection dated 21st March 2023In this Preliminary Objection the 2nd Respondent seeks to have the Applicants Notice of Motion dated 14th March 2023 struck out on the following grounds:-“1. The Application is res judicata to the extent that:a.the Court of Appeal (Okwengu, Jamila and Mbogholi JJA.) resolved the issue of eviction in favour of the 2nd Respondent vide a Ruling delivered on 19th August 2022 (in Civil Appeal (Application) No. E068 of 2022: MJK v FML),b.this Honourable court (Maureen Odero J.) similarly resolved the issue of eviction in favour of the 2nd Respondent vide a ruling delivered on 20th January 2023 (in Civil Appeal (Application) No. E096 of 2022: MJK v FML); (c.f. paragraph 26 of the High Court’s Ruling);c.the interlocutory orders that previously granted the Appellant/Applicant possession and user of the suit property were predicated on the outcome of Milimani Commercial Courts Divorce Cause No. 272 of 2019 (“the divorce cause”) on the existence or nonexistence of a marriage between the Applicant and the 2nd Respondent;d.the trial Court then (Nyaga CM) now Justice of the High Court delivered a judgement in the Divorce Cause on 27th September 2022 holding that there was no marriage between the Applicant and the 2nd Respondent;e.this Honourable Court (Maureen Odero J.) refused to stay the final judgement of the Divorce Cause on 20th January 2023, vide a Ruling alluded to in sub paragraph (b) above;f.The Appellant/Applicant’s unsuccessful Applications were predicated on the fact that the interlocutory orders that previously granted the Applicant possession and user of the property automatically lapsed/abated upon delivery of the judgement in the Divorce Cause to the effect that there was no marriage between he Applicant and the 2nd Respondent (c.f. paragraph 17 of the High Court’s Ruling alluded to in subparagraph (b) above;”

12. I have carefully considered the Preliminary Objection filed by the 2nd Respondent as well as the written submissions filed by both parties.

13. The definition of a Preliminary Objection was given in the case of Mukisa Biscuits Manufacting Company Ltd v West End Distributors Ltd [1969] EA where the court stated as follows:-“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.“........A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.”

14. In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows:-“a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”

15. Therefore in order for a preliminary objection to succeed the following tests must be satisfied.(i)The Preliminary Objection should raise a pure point of law.(ii)The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.(iii)The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.(iv)A valid Preliminary Objection ought if successful dispose of the entire suit.

16. Therefore a genuine and proper Preliminary Objection can only raise points of law and must not itself derive its foundation on facts or information which stands to be tested by normal rules of evidence.

17. By this Preliminary Objection the 2nd Respondent asserts that the application dated 12th April 2023 is ‘res judicata’ given that the matters raised therein have already been heard and determined by other courts.

18. The principle of res judicata is provided for by Section 7 of the Civil Procedure Act. Cap Laws of Kenya as follows:-“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

19. Black Law Dictionary 10thEdition defines res judicata in the following terms:-“An issue that has been definitely settled by judicial decision…. the three essentials are:-i.an earlier decision on the issue;ii.a final judgement on the merits; andiii.the involvement of the same parties, or parties in privity with the original parties;”

20. The Court of Appeal in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR stated as follows:-“That rule or doctrine of res judicata serves the salutary aim of bring finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice”. [own emphasis]

21. Therefore party seeking to rely on the doctrine of res judicata to bar a suit from being heard must prove each of the following elements:-a.The suit or issue raised was directly and substantially in issue in the former suit;b.The former suit was between the same parties or between the same parties under whom they or any of them claim;c.The parties were litigating under the same title in the former; andd.The court that formerly heard and determined the issue was competent to try and the subsequent suit or the suit in which the issue is raised.

22. The purpose of the doctrine of res judicata is to avoid a scenario where the courts are engaged in endless rounds of litigation over the same issue. A litigant may not commence more than one action in respect of the same or a substantially similar cause of action so as to avoid a multiplicity of suits.

23. In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merit by a court of competent jurisdiction.

26. In my view the question of res judicata does not arise as the instant Application dated 12th March 2023 seeks to have the Respondent cited and punished for contempt. The Rulings cited by the 2nd Respondent in his Notice of Preliminary Objection all dealt with the question of the existence of a marriage between the Applicant and the 2nd Respondent, question of stay of orders allowing the removal of the Applicant from the suit property and the question of the existence of status quo orders.

27. It is manifest therefore that the present application does not seek the same or similar orders as the ones cited by the 2nd Respondent in his Preliminary Objection as none of those other rulings dealt the issue of the Respondents being in contempt of court orders.

28. Therefore I find no merit in the Notice of Preliminary Objection dated 21st March 2023. The same is dismissed in its entirety.

(ii) Notice of Motion dated 12th April 2023 29. The Applicant in seeking to have the Respondents cited for contempt states that on 5th April 2023 the 1st Respondent supervised by the OCS Sprint Valley Police Station went to the suit property and removed the Applicants furniture and chattles form the said premises.

30. It is a fact that on 22nd March 2023 this court heard oral arguments from both sides where Mr. Kurgat acting for the Applicant sought issuance orders of ‘status quo’ pending the hearing and determination of their application.

31. After hearing both parties the court stated as follows:-“In order to avoid prejudicing any party I do direct that the current status quo be maintained pending the determination of the Preliminary Objection….”

32. Further on 29th March 2023 the Court extended the interim orders of status quo.

33. The Ruling on the Preliminary Objection was eventually delivered virtually on 24th April 2023 in which the court formally set aside the orders of status quo as follows:-“… For avoidance of doubt the orders of status quo issued on 22nd March 2023 are hereby set aside…”

34. Therefore during the period from 22nd March 2023 upto 24th April 2023 both parties were under an obligation to maintain the status quo. Since the Applicant had come to court seeking to stay the orders made in the subordinate court authorizing the 2nd Respondent o evict her from the suit property the status quo meant that there was to be no eviction/removal of Applicant pending delivery of the ruling.

35. The Applicant claims that on 5th April 2023 the Respondents willfully and deliberately violated the orders of status quo by forcibly and without justifiable cause removing the Applicant’s furniture and chattels from the suit property. She seeks to have the Respondents cited for contempt.

36. The jurisdiction of this Court to punish for contempt is found in Section 5 of the Judicature Act which provides:-“(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 such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court."

37. Thus in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828, the obligation to obey court orders was well explicated thus:-“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void." [own emphasis]

38. In the premises, the elements that the Applicant herein needed to prove are:-a)that the Order of 22nd March 2023 was clear, unambiguous and binding on the respondent;b)that the Respondents had proper notice or knowledge of the terms of that Order;c)that the Respondents has deliberately failed to obey the terms of the Order;(see Katsuri Limited v Kapurchand Depar Shah [2016] eKLR)

39. The standard of proof applicable in contempt applications, is above a balance of probabilities, given the criminal connotations of contempt proceedings. In Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227 the Court of Appeal stated as follows:-“…In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi- criminal in nature." [own emphasis]

40. It is important that the court satisfy itself that the person being accused of disobeying courts orders had knowledge/notice of said court orders.In Oilfield Movers Ltd v Zahara Oil & Gas Limited [2020] eKLR the court stated as follows:-“It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive 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…..”

41. In my view the orders which were made by this court on 22nd March 2023 and later extended on 29th March 2023 were both clear and unambiguous.

42. I also have no doubt that the 2nd Respondent was fully aware of the said orders as his Advocate Dr. Thiankolu was present in court on both occasions. The Respondents do not deny having knowledge of the status quo orders.

43. The Applicant’s claim that her belonging were removed from the suit property on 5th April 2023 during the subsistence of the status quo orders has not been denied. Indeed the Applicant has annexed to her supporting Affidavit photographs of household goods and furniture littered in the compound outside the house. I have no reason to doubt the Applicant’s claim that her properties were so removed.

44. The 2nd Respondent argues that the orders of status quo had been overtaken by events following the ruling of this court delivered on 24th April 2023 which set aside said orders. This argument is both misleading and fallacious.

45. The order setting aside the orders of status quo was made on 24th April 2023. The removal of the Applicants property took place on 5th April 2023 a full two (2) weeks before the orders were set aside. Therefore the act of removal occurred during the subsistence of the orders of status quo and was done in contempt of court orders.

46. In order to find the Respondents ‘guilty’ of contempt it must be proved that they willfully and deliberately disobeyed the orders of status quo. In other words it must be shown to the satisfaction of the court that it was either the 1st or 2nd Respondent or both of them, or persons acting under their instructions who removed the Applicants properties from the house.

47. The Applicant in her supporting Affidavit averred in Paragraph 6 that the 2nd Respondent ousted her belongings and personal appurtenances from the house

48. There is no proof that the 2nd Respondent personally removed those items. The 2nd Respondents claims that he was not even in the country when the incident occurred. The 2nd Respondent annexed to his Replying Affidavit a copy of his Passport (Annexture ‘FML-1’) which bears an entry stamp into Kigali on 3rd April 2023. On 5th April 2023 the 2nd Respondent exited Kigali. Unfortunately the time he left Rwanda is not indicated. However I do accept that the 2nd Respondent was not in the country when this incident occurred.

49. At Paragraph 9 of her supporting Affidavit the Applicant avers as follows:-“That it is within my knowledge that the people who carried out the eviction were goons hired by the 2nd Respondent without the knowledge of the OCS Runda Police Station.”

50. It is not exactly not clear how the Applicant came to acquire this knowledge. In any event no proof has been tendered that the 2nd Respondent ‘hired’ goons to carry out any eviction. This is a mere allegation which remains uproven

51. Likewise there is no evidence or proof that the 1st Respondent conducted the eviction neither is there any evidence in record to prove that the 2nd Respondent instructed or directed the 1st Respondent to carry out the eviction.

52. The eye witness account to the incident of 5th April 2023 was given by one Mr Bernard Mogambi the General Manager of Delta Seven Security Limited who wrote an account (Annexture ‘MJK ‘4’) to the Applicant’s Supporting Affidavit dated 12th April 2023). In this account it is stated that the security guard at the premises raised alarm that:-“police officers had forcefully entered the premises and started vandalizing the house.” [own emphasis]

53. Thus according to this eyewitness account it was ‘police officers’ who carried out the removal not the 1st or 2nd Respondent. The witness account further states:“It was later confirmed that the operation was supervised by the police inspector from Spring Valley Police Station…”

54. It would appear therefore that this operation was conducted by police officers. It is not clear why or at whose behest those police were acting. The Applicant may suspect that the police officers were acting under instructions from the 2nd Respondent. This is a court of law. Mere suspicion will not suffice. No concrete and/or tangible proof has been tendered to show that it was the 1st or 2nd Respondents who instructed the Police Officers to remove those items. The Applicant may be better advised to lodge a complaint with the Director Criminal Services to get those answers.

55. Finally, I find no evidence of wilful and/or deliberate disobedience of the court orders by the 1st or 2nd Respondent. Accordingly, I dismiss in its entirety the Notice of Motion dated 12th April 2023. Costs will be met by the Applicant.

DATED IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. ........................MAUREEN A. ODEROJUDGE