[2025] KEELC 33 (KLR)

Mbugua v County Government of Nakuru & another (Environment & Land Case 111 of 2024) [2025] KEELC 33 (KLR) (Environment and Land) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 33 (KLR)

Republic of Kenya

In the Environment and Land Court at Naivasha

Environment and Land

Environment & Land Case 111 of 2024

MC Oundo, J

January 16, 2025

(FORMERLY NAKURU ELC LAND CASE NO. 6 OF 2024)

Between

Francis Macharia Mbugua

Plaintiff

and

County Government of Nakuru

1st Defendant

Land Registrar, Naivasha

2nd Defendant

Ruling

1. Coming up for determination is a Notice of Motion Application dated 19th September, 2024 brought under the provisions of Section 35 (1) of the Judicature Act, Sections 1A, 1B, 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law, wherein the Applicant herein has sought for contempt proceedings against the CEC for Lands, Physical, Housing & Urban Development Nakuru County for blatantly failing to comply with the court’s orders of 11th July, 2024 and thereafter be directed to purge his contempt by issuing the Applicant with the requisite approvals for subdivision on the parcel and in the alternative, summons do issue against the said CEC to appear before the court and show cause why he should not be committed to civil jail. Lastly the Applicant seeks for cots of this application.

2. The said application was supported by the grounds therein as well as the supporting Affidavit of an even date, sworn by Francis Macharia Mbugua, the Applicant herein who deponed that despite service the orders of injunction granted by the court on 11th July, 2024 upon the Respondent on the 24th July, 2024 through the County Attorney’s office, the Respondents had blatantly refused to comply with the said orders by refusing to approve the sub-division of the parcel of land No. Naivasha Municipality Block 5/227 (Suit Property).

3. That further, the Respondents through their agents, servants and/or employees and particularly the CEC Lands, Physical, Housing & Urban Development Nakuru County had continued to violate the court order dated 11th July, 2024 by denying him free use of the suit property and therefore the said CEO should be cited for contempt and directed to purge the contempt by issuing him with the requisite approvals for subdivision since he had already made payment for the same.

4. In response and in opposition to the Applicant’s Application, the 1st Respondent filed its Replying Affidavit dated 14th October, 2024 sworn by Justice Mayaka, the acting Director of Physical Planning in the Department of Lands, Physical Planning, Housing & Urban Development of the 1st Respondent under the direction of the CEC in charge deponing that the instant Application was speculative and couched in unsubstantiated allegations and falsehoods with the sole aim of misleading and hoodwinking the court.

5. That pursuant to the provisions of Article 186 and Section 8 of Part 2 of the 4th Schedule of the Constitution as well as the Physical and Land Use Planning Act, 2019, the 1st Respondent has the power and function of county planning and development. That Section 56(a) and (b) of the Physical and land Use Planning Act, 2019 empowers the 1st Defendant/Respondent within their area of jurisdiction to prohibit or control the use and development of land and buildings in the interests of proper and orderly development of its area and a further power to control or prohibit the subdivision of land within its jurisdiction. That section 57 (1) of the Physical and Land Use Planning Act, 2019 on the other hand provides that no person shall carry out development within a county without a development permission granted by the respective county executive committee member.

6. That indeed, on 11th July, 2014, the court had issued an order restraining the Defendants/Respondents from interfering with the suit property in any way whatsoever. That on 17th December, 2023, the Plaintiff/Applicant through his Consultant Onesmus Musyoki of Urban Dimensions Co. Ltd had made an online Application for approval of proposed regularization of subdivision and change of use of the suit property which had been given a reference number NKR-PLN-AAA234. That however, upon review of the said Application, it had been noted that the Plaintiff was seeking approval for regularization of sub division of the suit property whereas there was an existing development on the land in form of sub-division. That it was also noted that there had been public concern that the land was reserved for public use thus there was an ongoing investigation to ascertain the circumstances under which the suit property had been allocated to a private entity.

7. That subsequently, the Plaintiff’s application for approval of proposed regularization of subdivision and change of use of the suit property had been deferred on 23rd January, 2024 which information had been availed to the Plaintiff’s consultant through his online portal. That a formal letter highlighting the same and the reasons for the deferment had also been issued on 9th October, 2024. He thus refuted the Plaintiff/Applicant’s allegations that the 1st Defendant through its agents, servants and/or employees and particularly the CEC Lands, Physical Planning, Housing & Urban Development had been in violation of the court’s orders by denying the Plaintiff free use of the suit property.

8. That indeed, the 1st Defendant/Respondent upon being served with the said court order on 3rd September, 2024, it had not interfered with the suit property in any way whatsoever and the Applicant had not presented any material to the contrary. That further, the Applicant had not demonstrated any breaches of law or procedure by the 1st Defendant/Respondent in the course of discharging its constitutional mandate which would warrant the intervention of the court. That subsequently, granting the orders sought herein would amount to unfairly and unjustly interfering with the constitutional mandate of the 1st Defendant/Respondent.

9. That the Applicant having come to court with unclean hands, he was undeserving of any relief from the court of equity hence no prejudice would be occasioned to him in the event that the orders sought herein were disallowed. He thus prayed that the instant Application be dismissed with costs.

10. The application was disposed of by way of written submissions wherein the Applicant summarized the factual background of the matter and framed his issue for determination, to wit, whether he had satisfied the conditions for the grant of the orders sought.

11. Reliance was placed in the case of Samuel M.N Mweru & Others v National Land Commission & 2 Others [2020] eKLR to submit that he had met the requisite conditions established for the grant of contempt proceedings against the Respondent as provided for in civil cases. That there had been nothing ambiguous in the court’s order of 11th July 2024 thus the Respondents had not raised any concern on the implication of the same.

12. That the Respondents had been served with the court’s order wherein in compliance with the requirement that for a corporate body or other corporations, court’s orders be served upon the person required to do or not do the act, the order had not only been served upon the County Attorney who had acknowledged receipt on behalf of the Defendants but also upon the CEC for Lands, Physical, Housing & Urban Development being the specific county officer required to grant approvals for subdivision, and who was the contemnor herein.

13. That the CEC for Lands, Physical, Housing & Urban Development, being the specific officer of the 1st Respondent against whom contempt had been alleged had vide his Affidavit dated 14th October, 2024 failed to address the critical aspects of contempt but instead assumed a contrary stand as to why he was in contempt of the orders of the court.

14. That the breach had not been denied but instead the deponent had stated the powers of the office and made allegations of an ongoing investigation as to the root of the Applicant’s title to the suit property without attaching any proof and which allegations could only be dealt with in the main suit. That having proved the conditions for grant of the orders he was seeking and the orders that had been served upon the Respondents having been endorsed with a penal notice for failure of compliance, that the court allows his application as prayed.

15. In response the 1st Defendant/Respondent vide its submissions dated 4th November, 2024 also summarized the factual background of the matter before framing one issue for determination, to wit, whether it was guilty of contempt.

16. It placed reliance in a combination of decisions in the case of Samuel M.N Mweru & Others v National Land Commission & 2 Others [2020] eKLR and James Muchina Wandutu v County Government of Muranga & 5 others [2019] eKLR to submit that it was trite that in order for an Applicant to succeed in civil contempt proceedings, he must demonstrate that the Respondent’s refusal to obey the court’s order was both willful and mala fides. That further, the threshold of proof required in contempt proceedings was higher than that required in civil cases but lower than the standard of beyond reasonable doubt in criminal proceedings. That the Applicant had failed to meet all the tests set out therein.

17. It was its submission whereas the court’s order had been clear and unambiguous where the 1st Defendant/Respondent had the proper notice of the same, the Applicant had not demonstrated and proved the third and fourth elements which were critical and merited detailed consideration. That the 1st Defendant/Respondent had not acted deliberately and in breach of the terms of the court’s order said order.

18. That whereas the court’s order issued on 11th July, 2024 had restrained the Defendants/Respondents from interfering with the suit property in any way whatsoever, the Applicant herein has alleged that the 1st Defendant/Respondent was in contempt of court for having refused to approve the Plaintiff/Applicant’s application for subdivision and change of use of the suit property. No material and/or evidence had been placed before court to buttress this allegations. That the Applicant had not presented any evidence to demonstrate and/or prove that there had been a change in the state of affairs of the suit property and that the said change had been directly occasioned by the 1st Defendant/Respondent.

19. The 1st Defendant/Respondent reiterated the contents of its Replying Affidavit to submit that the issue of approval or otherwise of the said Plaintiff/Applicant’s Application could not be the subject of the instant Application as the same had been made and a decision rendered by the 1st Defendant/Respondent long before the court had issued its orders of 11th July, 2024. That in any event, since the 1st Defendant/Respondent was served with the court order on 3rd September, 2024, it has not had any engagement whatsoever with the suit property.

20. In conclusion, it submitted that from the foregoing, the instant Application did not satisfy the prerequisites for the court to grant the orders sought herein. That the same was therefore misplaced and unwarranted since if the Plaintiff/Applicant had been aggrieved by the 1st Defendant/Respondent’s decision of 23rd January, 2024, there were avenues for redress of the same but certainly not by way of contempt proceedings. That in any case, there was a caution placed on the suit property hence no transaction could take place until the instant suit was heard and determined.

21. It thus prayed that the Plaintiff/Applicant’s Application dated 9th September 2024 be dismissed with costs.

Determination. 22. I have considered submissions by both Counsel for the Applicant and the Defendants. The Black’s Law Dictionary (Ninth Edition) defines contempt of Court as:-“Conduct that defies the authority or dignity of a Court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.”

23. The law guiding the present Application is Order 40 Rule 3(1) of the Civil Procedure Rules which stipulates as follows:-‘’In cases of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the Court directs his release.’’

24. Section 29 of the Environment and Land Court is clear to the effect that;‘'Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both’’

25. It is an established principle of law as was held by the High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005 that in order to succeed in civil contempt proceedings, the Applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order.

26. The current issue stems from an application dated 17th January, 2024 where the Plaintiff had sought interim orders against the Defendants restraining them from interfering with his title, possession and use of all that parcel of land known as Naivasha/Municipality Block 5/227, pending the hearing and determination of the instant suit. There had been no response from the Defendants wherein vide a ruling dated the 11th day of July 2024, the Court had allowed the undefended application and granted the injunction sought.

27. The Plaintiff has now filed an application dated 19th September, 2024 seeking contempt proceedings against the 1st Defendant/Respondent on a claim that it has failed to comply with the ex-parte orders of 11th day of July 2024 despite service, by failing to issue him with the requisite approvals for subdivision on the parcel of land.

28. It must be noted that the interim orders herein issued were clear and unambiguous to the effect of preserving the substratum of the subject matter, as a case management strategy pending the hearing and determination of the main suit where the court had injuncted the Defendants from interfering with the suit property.

29. The alleged refusal by the 1st Defendant therefore to approve the applicant’s application for subdivision and change of use of the suit land respectively does not fall within the ambit of the ex parte orders of injunction herein issued by the court but on the contrary, the said refusal is in compliance with the said orders. Indeed as pointed out by the 1st Defendant, there has been no evidence tendered to demonstrate that the Defendants have interfered with the substratum of the suit land herein or that there has been a change in the state of affairs of the suit property, which change has been caused by the Defendants, in disobedience of the courts orders of 11th July 2024.

30. The Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & Another [2018] eKLR held that;“The power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the Respondents to establish that the alleged Contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order.’’

31. In the circumstances, I find no merit in the application dated the 19th September, 2024 and I accordingly dismiss it with costs.

DATED AND DELIVERED VIA TEAMS MICROSOFT AT NAIVASHA THIS 16TH DAY OF JANUARY 2025. M.C. OUNDOENVIRONMENT & LAND – JUDGE