[2025] KEELC 2854 (KLR)

Mohamed & 19 others v Kajoji & 21 others (Environment & Land Case 99 of 2019 & 139 of 2015 & 28 of 2020 (Consolidated)) [2025] KEELC 2854 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2854 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 99 of 2019 & 139 of 2015 & 28 of 2020 (Consolidated)

FM Njoroge, J

March 26, 2025

Between

Mahmoud Abdalla Mohamed & 9 others & 9 others

Plaintiff

and

Gabriel Katana Kajoji

1st Defendant

New Century Marine Trading East Africa Company

2nd Defendant

Chi Fung Lam

3rd Defendant

Patricoan Kavinya Mulwa

4th Defendant

Kalama Rimba Gona

5th Defendant

Kajoji Rimba Gona

6th Defendant

Charo Rimba Gona

7th Defendant

Lucky Kalama Rimba (Administrator for the Estate of KEA Rimba Gona)

8th Defendant

Florence Ningala Chimega

9th Defendant

As consolidated with

Environment & Land Case 139 of 2015

Between

Mahmoud Abdalla Mohamed & 9 others & 9 others

Plaintiff

and

Kalama Rimba Gona & 3 others & 3 others

Defendant

As consolidated with

Environment & Land Case 28 of 2020

Between

Florence Ningala Chimega

Plaintiff

and

Mahmoud Abdalla Mohamed & 9 others & 9 others

Defendant

Ruling

1. The application placed before this court for determination is dated 8/11/2024 and has been brought under Sections 1B and 3A of the Civil Procedure Act, Order 24 Rules 1, 2, 4 (1) and (2) and Order 51 of the Civil Procedure Rules. The orders sought were framed as follows: -1. …………………………………………Spent;2. That the Honourable court be pleased to strike out the name of Kea Rimba Gona, the 8th Defendant herein, and in his place substitute the name of Lucky Kalama Rimba as the 8th Defendant in the suit;3. That the Plaintiffs do purge contempt of court orders of 23rd March 2021 and 9th December 2021 by giving the family of Kea Rimba Gona access to and from their homestead which is situate on a portion of the suit plot L.R No. MN/II/783;4. That the Plaintiffs do comply with the orders of this honourable court dated 23rd March, 2021 and 9th December 2021 respectively pending hearing and determination of the suit;5. That the Applicant herein be granted leave to file a defence and counter-claim to the suit filed by the Plaintiffs and that the 8th Defendant’s statement of defence and counter-claim attached to the affidavit be deemed as filed on payment of the requisite court fees;6. That the OCS do ensure that the Plaintiffs comply with the court orders in respect to prayers 2 and 3 respectively;7. That all necessary and consequential directions and orders be made.

2. The application is premised on the grounds enumerated on the face of the motion and supported by an affidavit sworn by the Applicant, Lucky Kalama Rimba, on 8/11/2024. The Applicant deposed that the 8th Defendant died on 19/7/2024 before the conclusion of the present suit, and that he subsequently sought and obtained grant of letters ad litem to proceed with the suit on behalf of the 8th Defendant herein. He asserted that the 8th Defendant had not filed a defence, so he exhibited a copy of a draft defence and counterclaim. He narrated that soon after the demise of the 8th Defendant, the Plaintiff fenced off and blocked the family of the 8th Defendant from accessing their home, which is situate on a portion of the suit land. The Applicant added that the Plaintiff’s actions were and remain contemptuous of the court orders dated 23/3/2021 and 9/12/2021.

3. The Application was opposed by one Abdalla Said Abdalla, on behalf of the Plaintiffs vide a replying affidavit dated 16/12/2024 and supplementary affidavit dated 20/12/2024. He deposed that the application is res judicata the application dated 17/6/2021 filed by the 9th Defendant. The deponent asserted that the Plaintiffs have not disobeyed any court orders served upon them. He further deposed that there was no explanation offered as to why the 8th Defendant did not file his defence during the more than 5 years since the suit was filed and summons served. The deponent asserted that the fence mentioned in the application, was in fact constructed in the year 2020 upon due approval by the County Government of Kilifi, long before the order of 23/3/2021 was issued.

4. In his supplementary affidavit, the said Abdalla added that the 8th Defendant, prior to his demise, he had sworn an affidavit on 7/1/2020 stating that he (8th Defendant) was employed by Abdulla Mohamed Abdulla, the initial registered owner of Plot No. 783 (Original No. 287/57), as a caretaker thereon; that he did not have any interest in ELC 139 of 2015 or the suit property therein. The deponent further stated that pursuant to a court order dated 28/4/2022, the Plaintiff was allowed to develop and use the suit property except some 2. 4 acres pending the determination of the suit. To the deponent, the application is a delaying tactic, non-starter, misconceived, incompetent and an abuse of the court, hence ought to be dismissed.

5. The 9th Defendant filed grounds of opposition dated 30/1/2025, wherein she stated that she shall not oppose the application on the grounds that that the 9th Defendant does not oppose the substitution of the 8th Defendant by one Lucky Kalama Rimba; and that to avoid causing more delay in this matter, the court should issue an order maintaining the existing status quo and further direct that the matter be heard and determined without any further delay.

6. The application was canvassed by way of written submissions.

Applicant’s Submissions 7. Counsel submitted that the first two prayers in their application are spent and dealt with. In relation to prayer 3 and 4, counsel submitted that the Plaintiffs deposed that the order of 28/4/2022 allowed them to use and develop the suit property except 2. 4 acres, yet they contravened that order by blocking the 8th Defendant’s family from accessing their houses.

8. Counsel blamed the 8th Defendant’s former counsel for the failure to file a defence on time when an order for joinder and consolidation was issued by this court. He added that prayer 6 is warranted to ensure that there is harmony and no violence since the Plaintiffs have been using the local administration officers and the police, and also, the Plaintiffs have engaged over 20 guards to block access to the suit property.

9th Defendant’s Submissions 9. Counsel reiterated that the 9th Defendant had no objection to the substitution of name, but urged the court to dismiss the prayers 3, 4 and 6 so as to open the door for full hearing of the suit. Counsel urged the court to maintain status quo and be guided by Article 159 of the Constitution, and Section 1A, 1B and 3A of the Civil Procedure Act.

10. As at the time of writing this ruling, the Plaintiffs had not filed their written submissions, therefore, I did not have the opportunity to consider them.

ANALYSIS AND DETERMINATION 11. I have considered the notice of motion, its supporting affidavit, replying affidavit filed by the Plaintiffs, grounds of opposition filed by the 9th Defendant, and the submissions presented before me. Notably, on 19/12/2024 when the matter was in court, prayer No. 2 on substitution was granted by consent. Therefore, the remaining issues for determination are: -i.Whether the present application is res judicata the application dated 17/6/2021 filed by the 9th Defendant;ii.Whether the Plaintiffs are in contempt of this court orders dated 23rd March 2021 and 9th December 2021;iii.Whether the 8th Defendant should be granted leave to file a defence and counter-claim to the suit.

12. The issue of res judicata goes into the jurisdiction of this court. Section 7 of the Civil Procedure Act provides:“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…”

13. While the Plaintiffs raised this issue, they did not explain or substantiate the same. Moreover, I have looked at the application dated 17/6/2021 that was filed by the 9th Respondent. The orders sought therein were stated as:“1. That the Plaintiff/applicant be granted leave to amend the originating summons and the annexed amended originating summons be deemed as having been properly filed;

2. That costs be in the cause.”

14. I do not see how the issues in the application dated 17/6/2021 can be similar to those raised in the present application. In the circumstances, the objection based on res judicata cannot hold.

15. The Black’s Law Dictionary (9th Edition) defines contempt of Court as follows: -“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.”

16. Section 29 of the Environment and Land Court Act is clear 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.”

17. It is also an established principle of law as it was held in the case of Kristen Carla Burchell v. Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005 that in order to succeed in civil contempt proceedings, an 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.

18. Further, it is important to note that contempt of court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This, as has been stated in numerous decisions, is because the liberty of the subject is usually at stake and the Applicant must prove willful and deliberate disobedience of the court order, if they are to succeed.

19. In the present case, the orders allegedly disobeyed by the Plaintiffs are said to be dated 23/3/2021 and 9/12/2021.

20. The ruling of 23/3/2021 was in respect to an application dated 2/9/2020 filed by the 5th -9th Defendants for orders inter alia, an injunction be issued against the Plaintiffs restraining them from interfering, trespassing, entering, demolishing or constructing houses in all that property identified as MN/II/783, Kilifi County. The court instead ordered maintenance of the status quo prevailing ante the orders of 9/12/2019 to be restored and maintained pending the hearing and determination of the consolidated suit. For context, the orders of 9/12/2019 were granted against the 1st -4th Defendants (who were the only sued Defendants at that point) and the Plaintiffs were also allowed to fence the suit property.

21. The ruling of 9/12/2021 was in respect to the Plaintiffs’ application dated 28/7/2021. In that application, the Plaintiffs had sought a review of the orders previously granted on 23/3/2021 and conservatory orders to the effect that the Plaintiffs be allowed to continue being in possession of the suit property. The court echoed the ruling of 23/3/2021 and declined to grant the orders sought.

22. According to the 8th Defendant/Applicant on the one hand, the Plaintiffs have since disobeyed those orders by constructing a perimeter wall and blocking the 8th Defendant from entering the suit property. On the other hand, the Plaintiffs averred that the wall was constructed in 2020, before the subject orders were issued, they cannot therefore be said to be in contempt.

23. It is however clear that the court on 23/3/2021 ordered maintenance of the status quo prevailing ante the orders of 9/12/2019 to be restored and maintained pending the hearing and determination of the consolidated suit. Essentially, the court ordered a return to the situation as it was before those orders of 9/12/2019 were issued. It is important to note that even at that time in 2021, the Plaintiffs had informed the court that they had constructed a perimeter wall around the suit property. The court observed that in its ruling of 23/3/2021 and proceeded to direct that the status quo ante 9/12/2019 be restored. The status before 9/12/2019 was that the perimeter wall had not been constructed. It was therefore expected of the Plaintiffs to demolish the same and restore the property to its previous state.

24. Notwithstanding, the Plaintiffs also averred that this court issued further orders on 28/4/2022 allowing prayer 3 of their application dated 6/4/2022, to the effect that they were allowed to use and develop the suit property except 2. 4 acres, pending the hearing and determination of the suit. From the photographs annexed, there is no doubt that the wall surrounds the suit property. The Plaintiffs have not demonstrated otherwise, that is, that they have excluded the 2. 4 acres as ordered by the court. In the circumstances, I am satisfied that the Plaintiffs are in disobedience of this court’s orders which they have been well aware of. I therefore find merit in prayer 3 of the application.

25. The 8th Defendant was joined to the proceedings herein on 23/3/2021, but failed to file a defence. He now seeks this court’s permission to file a defence and counter-claim, a draft which he annexed to the supporting affidavit.

26. While considering an Application for extension of time within which to file Pleadings, lists of documents and additional witness statements or leave to do so, the court is called upon to take into account various circumstances, inter-alia, the stage where the hearing has reached and whether the adverse Party would be disposed to suffer prejudice or Injustice, not compensable by an award of costs. The power to grant such leave is also a discretion of the court, which must be exercised judiciously and not otherwise.

27. In the present case, the 8th Defendant blamed his previous counsel for not filing a defence on time. I have carefully perused the draft defence and counter-claim, I have established that the 8th Defendant’s claim is largely premised on adverse possession and illegality. Essentially, these are critical issues for determination which cannot be wished away at this point. Given the likely implication of the decision herein, it is not lost on this court that this is one dispute that ought to be heard and determined on merits, so as to enable the court to pronounce itself with finality on the question of the ownership of and Title to the suit property.

28. In support of this position, I am guided by the decision of the court in the case of Philip Keiptoo Chemwolo & Another versus Augustine Kubende (1986)eKLR, where the Court observed as follows: -“I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

29. Based on the foregoing, I am inclined to exercise some degree of clemency in favour of the 8th Defendant to avert the hardship and/or injustice that may obviously arise if latitude is not expanded for the filing of the pleadings and incidental documents.

30. The upshot is that the application is allowed in terms of prayer 3, 4 and 5 as prayed. The grant of these prayers is however not a licence for disorder on the ground. This court is aware that it has issued other earlier orders as to how the parties ought to conduct themselves with regard to the suit land and in particular the orders in the ruling dated 23/9/2024. It is necessary that all parties observed law and order pending the determination of the suit. It is also not expected that in a suit filed in 2019 the parties will continue to immerse themselves into interlocutory applications without making any progress at all towards finalization of the main suit. I also issue the following additional orders to facilitate expeditious disposal of the main suit:a.The applicant shall file defence and counterclaim and serve within 14 days of this order;b.The other parties shall respond thereto within 14 days of service;c.For good order the plaintiffs shall file and serve their consolidated trial bundle duly indexed and paginated within 21 days of service of the defence and counterclaim upon them;d.The defendants shall file them and serve their consolidated trial bundle duly indexed and paginated within 21 days of service of the plaintiff’s bundle on them;e.This suit shall be mentioned on 11/6/2025 for issuance of a hearing date.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF MARCH 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI.