[2014] KEELC 206 (KLR)
The court found that the respondents, having been present and represented during the issuance of the consent order, were fully aware of its terms, which included maintaining the status quo and refraining from further encroachment or development on the suit property. Despite this, the respondents proceeded to...
Source-derived case information.
- Citation
- [2014] KEELC 206 (KLR)
- Parties
- Applicant: Mhandisi Enterprises Ltd.; Respondent: Mohamed Swalehe Mwajembe; Respondent: Rama Omari Chimwega; Respondent: District Land Registrar (Kwale); Respondent: Attorney General; Respondent: Mary Ndale Kai; Respondent: Omar Athumani; Respondent: Athumani Juma; Respondent: Muhamed Swallehe; Respondent: Kwale District Survey Officer
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 126 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt of Court Orders
- Outcome
- Respondents found in contempt of court orders.
- Judges
- SN Mukunya
- Legal Topics
- Contempt of Court, Injunctive Orders, Land Boundaries, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mhandisi Enterprises Ltd.
Applicant
Mohamed Swalehe Mwajembe
Respondent
Rama Omari Chimwega
Respondent
District Land Registrar (Kwale)
Respondent
Attorney General
Respondent
Mary Ndale Kai
Respondent
Omar Athumani
Respondent
Athumani Juma
Respondent
Muhamed Swallehe
Respondent
Kwale District Survey Officer
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Contempt of Court Orders
Legal Issues
- 1 Whether the respondents were in contempt of court orders issued by consent regarding Plot No. Kwale/Diani Beach/Block 653.
- 2 Whether the actions of transferring, altering documents, and developing the land constituted disobedience of court orders.
Ratio Decidendi
The court found that the respondents, having been present and represented during the issuance of the consent order, were fully aware of its terms, which included maintaining the status quo and refraining from further encroachment or development on the suit property. Despite this, the respondents proceeded to transfer the property, alter official records, and carry out substantial developments. The court held that the respondents' actions were in clear violation of the court's orders and amounted to contempt. The respondents' arguments regarding ownership and historical occupation were deemed irrelevant to the issue of compliance with the court's orders. The court emphasized that court...
Court Disposition
Respondents found in contempt of court orders.
Orders
- The 1st, 2nd, and 3rd respondents are to be arrested and brought to court to show cause why they should not be punished for contempt as required by law.
- Status quo on Plot No. Kwale/Diani Beach/Block 653 to remain until final disposal of the suit.
Full Case Text
Judgment text and source record
57 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 126 OF 2011
MHANDISI ENTERPRISES LTD. ....................... PLAINTIFF/APPLICANT
- V E R S U S -
1. MOHAMED SWALEHE MWAJEMBE
2. RAMA OMARI CHIMWEGA
3. DISTRICT LAND REGISTRAR (KWALE)
4. ATTORNEY GENERAL
5. MARY NDALE KAI
6. OMAR ATHUMANI
7. ATHUMANI JUMA
8. MUHAMED SWALLEHE
9. KWALE DISTRICT SURVEY OFFICER ...... DEFENDANTS/RESPONDENTS
RULING
[1] When this matter came for hearing on 8th July, 2013 Mr. Wangalwa advocate for the applicant, Mr. Gikandi advocate for the 1st, 2nd and 8th defendants and Miss. Kiti State Counsel for 3rd and 9th defendant/respondents filed a consent in court.
The consent was as follows:-
"REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 126 OF 2011
MHANDISI ENTERPRISES LTD .................................. PLAINTIFF/APPLICANT
-VERSUS
MOHAMED SWALEH MWAJEMBE ............................ 1ST DEFENDANT/RESPONDENT
RAMA OMARI CHIMWEGA ..................................... 2ND DEFENDANT/RESPONDENT
DISTRICT LAND REGISTRAR (KWALE) ................... 3RD DEFENDANT/RESPONDENT
ATTORNEY GENERAL ............................................ 4TH DEFENDANT/RESPONDENT
MARY NDALE KAI ................................................. 5TH DEFENDANT/RESPONDENT
OMAR ATHUMANI ................................................. 6TH DEFENDANT/RESPONDENT
ATHUMANI JUMA ................................................. 7TH DEFENDANT/RESPONDENT
MUHAMED SWALLEHE ........................................ 8TH DEFENDANT/RESPONDENT
KWALE DISTRICT SURVEY OFFICER .................. 9TH DEFENDANT/RESPONDENT
ORDER
BEFORE HON. JUSTICE S. MUKUNYA IN OPEN COURT ON 8TH JULY 2013
UPON READING the application by way of Notice of Motion dated 10th November, 2011 brought under section 3,3A and section 63E of the civil procedure act, Order 40 Rules 1,3, and 4 of the civil procedure rules and all other enabling provisions of the law AND UPON HEARING Mr. Wangalwa for the plaintiff/applicant Mr. Gikandi for the 1st,2nd and 8th Defendants/respondents and Mukiti for 3rd and 9th defendants/respondents
IT IS HEREBY ORDERED BY CONSENT
That the Notice of Motion dated 10th January, 2012 be marked as settled on the following terms:-
1. That an order is hereby issued directing the Kwale District Survey Officer the 9th Defendant/respondent to reestablish the boundary and replace any missing beacons on plot No. Kwale/Diani Beach/Block 653 and the O.C.S. Diani Police Station to provide the necessary security when the said exercise is to be carried out. The same to be done within 60 days.
2. That the D.C.I.O. Kwale to attend the court on 23rd September, 2013 at 9. 00 a.m and produce the two Green Cards in respect of Plot No. Kwale/Diani Beach Block 653.
3. That the existing status quo on Plot No. Kwale/Diani Beach/Block 653 to remain intact i.e. there should be no further encroachment including cultivation or quarrying should take place until the final disposal of this suit.
GIVEN under my hand and seal of the court at Mombasa this 8th day of July, 2013.
DEPUTY REGISTRAR
HIGH COURT OF KENYA
MOMBASA
ISSUED at Mombasa this 19th day of July, 2013"
[2] Mr. Gikandi advocate for 1st, 2nd and 8th defendant, Mr. Wangalwa advocate for the plaintiff and Miss. Kiti State Counsel for 3rd and 9th respondents signed the handwritten consent. They later had that order extracted and had the Deputy Registrar issue the same on 19th July, 2013.
Their respective clients therefore knew and were privy to the consent and the court order. The 1st,2nd and 3rd respondent have not denied that while the court orders are inforce they have proceeded to transfer and made a document called Memorandum of Transfer and altered green cards with the Kwale County Government. The 1st and 2nd defendant have not denied that they have undertaken massive development namely boreholes, subdivision and quarrying stones on the premises.
[3] It is not also in doubt that the alteration of the suit premises have been done when the two green cards are with the District Criminal Investigation Officer pursuant to court orders.
[4] The fact that the 1st and 2nd defendants have title deeds showing ownerships and that the applicant has no right to ownership and that the respondents have been on the land since time immemorial as alleged by Mr. Wandera Learned Counsel for the respondents have no relevance to contempt of court orders. They cannot disobey court orders to which they have been privy to with impunity. I find them in contempt of court. I order that the three respondents be arrested and brought to court to show cause why they should not be punished as the law requires.
Dated and delivered in open Court at Mombasa this 18th day of September, 2014.
S. MUKUNYA
JUDGE
18. 9.2014
In the presence of:
Mr. Wangalwa advocate for the plaintiff/applicants
Mr. Wandera advocate for the defendants