https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3229

Murunga & another v Shikhutuli & 2 others (Environment and Land Case 1 of 2023) [2026] KEELC 3229 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3229 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case 1 of 2023 A Nyukuri, J May 20, 2026 Between Fred Burudi Murunga 1st Plaintiff Alice Shihundu 2nd Plaintiff and Maurice Jomo Shikhutuli Defendant and Emmanuel Malova Matayo 1st Intended Respondent Butali Sugar Mills 2nd Intended Respondent Ruling Introduction 1.Before court is a Notice of Motion dated 18th February 2026 filed by the 1st defendant seeking the following orders;a.Spentb.That the Honourable court be pleased to enjoin Emmanuel Malova Matayo And Butali Sugar Mills Limited in the proceedings.c.That upon prayer 2 being granted the Honourable Court be pleased to issue temporary order of injunction restraining Butali Sugar Mills Limited the intended respondent from paying Emmanuel Malova Matayo either by himself or through her agents, relatives, servants, employees and/or any other person acting under his direction sugar cane proceeds delivered under permit no. 437726 harvested from the suit parcel of land No. N/Kabrasmatsakha/848 on 15/02/2026, 16/02/2026 and 17/02/2026 in Matsakha location, Chegulo village of North Kabras Division pending hearing and final determination of this application.d.That in the alternative cane proceeds emanating from the said harvest on L.R. No. N/Kabrasmatsakha/848 delivered under permit no. 437726 by he defendant/respondent and the intended 2nd respondent Emmanuel Malova Matayo be deposited in court pending further direction of the Honourable court.e.That leave be granted to the plaintiff to cite the defendant/respondent herein for contempt of court for disobeying court orders.f.That upon prayer 2 being granted the defendant/respondent Maurice Jomo Shikhutuli be cited for contempt of court orders and be punished by being imprisoned for a period not exceeding (6) months as such period that the Honourable court may deem expedient and that his property be attached and sold for being in contempt of this Honourable court orders made on 20th February 2025.g.That the Honourable court be pleased to order that the defendant/respondent Maurice Jomo Shikhutuli shall not be heard in the proceedings herein until he purges his contempt. 2.The application is anchored on the supporting affidavit sworn by the applicant on 18th February 2026. The applicant’s case is that the court made consent orders dated 20th February 2026 for maintenance of status quo in respect of occupation and use of the suit property parcel No. N/Kabras/Matsakha/848. That the said orders were served on the defendant. That aware of the court orders, and in an attempt to circumvent the same, the defendant went ahead to harvest sugarcane from the suit property and delivered the sugarcane to Butali Sugar Mills using Emmanuel Malova Matayo. That the matter was reported at Matsakha Police Station. 3.He added that the defendant has turned violent and attacked one Joseph Munialo the applicant’s associate causing him grievous harm. That the defendant’s actions are in contempt of the orders of 20th February 2025. He attached the orders of 20/02/2025; sugar harvesting permit from Butali Sugar Mills Limited and Weigh bridge tickets. 4.The application was opposed. The defendant filed replying affidavit dated 26th February 2026. He stated that he was a law abiding citizen and that the averments in the supporting affidavit of the applicant are false. That the application is made in bad faith with the object of pre-empting the trial. That he was aware that on 17th February 2025 this court ordered that status quo prevailing on the suit property to be maintained and that he continues occupying the portion he is in occupation pending hearing and determination of the suit. 5.That on 12th April 2022, before the institution of this suit, one Luka Matayo leased a portion of the suit property where he planted sugar cane, which he tended till maturity which he harvested. That he has not threatened the plaintiff or acted violently towards him or others. That he had not violated the orders of this court. 6.In a rejoinder, the applicant filed further affidavit sworn by the 2nd plaintiff dated 13th March 2026. He stated that the lease agreement produced by the defendant was unlawful as the defendant leased land which was not registered in his name. That the defendant has been cunning as he previously indicated that cane was harvested by his wife Emelly Khasavuli Shigoli when he was the one who received payments in regard to a ruling made by the court in Butali. That the essence of the consent order was to preserve the suit property and proceeds therefrom. That the defendant was only entitled to use a portion and not the whole of the suit property. 7.On record are submissions filed by the plaintiff dated 13th March 2026, which this court has duly considered. Analysis and determination. 8.The court has carefully considered the application, response thereto and submissions. Three issues arise for the court’s determination, namely;a.Whether there is justification for the court toallow joinder of Emmanuel Malova Matayo and Butali Sugar Mills Limited as parties to this suit.b.Whether the applicant has proved contempt against the defendant; andc.Whether the applicant deserves the orders sought. 9.Order 1 Rule 10 (2) of the Civil Procedure Rules provides for the power of court to order joinder as follows;“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 10.Therefore, where it is shown that a person’s presence in a matter is necessary for the effectual and complete determination of all questions in the suit, the court may, on its own motion or on application, join such person to the proceedings. 11.In the case of Human Rights Alliance v Mumo Matemu & 5 Others [2015] e KLR, the court held that to obtain joinder an applicant ought to demonstrate that they have a recognizable stake in the subject matter of the litigation before court, that the decision of the court will affect them and that their interests will be well articulated by their presence in such proceedings. 12.In the instant case, the plaintiff’s claim is that the defendant’s presence on the suit property amounts to trespass and he therefore seeks the relief of permanent injunction to retrain the defendant from interfering with the suit property. In the instant application, the plaintiff sought to join one Emmanuel Malova Matayo and Butali Sugar Mills Limited in the proceedings. 13.The applicant has not shown what cause of action he intends to bring against Butali Sugar Mills and Emmanuel Malova Matayo. His issue is that sugarcane was harvested from the suit property and delivered at Butali sugar Mills. He does not claim to have been the one who planted the sugarcane and does not demonstrate where the sugarcane was planted, whether on the land which should be in use by the defendant for the time being or his land. Therefore, there is no clarity on what the plaintiff will be seeking against the two persons sought to be joined to these proceedings. I therefore decline to grant an order for joinder. 14.The legal framework on contempt is founded on section 5 of the Judicature Act which confers jurisdiction on the Superior Courts to punish for contempt and uphold the dignity and authority of the court. 15.The Black’s Law Dictionary (9th Edition), defines contempt of Court to mean:“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature, because such conduct interferes with the administration of justice.” 16.Compliance with court orders is essential for the maintenance of the rule of law and good order in a democratic state like ours. Therefore, it is the role of the courts to ensure that the authority and dignity of the court are upheld at all times. Thus, willful disobedience of court orders will not be tolerated by courts. 17.In the case of Hadkinson –V- Hadkinson (1952) 2 All ER. 567, it was held that:“It is plain and unqualified obligation of every person against or in respect of, who an order is made by a court of competent jurisdiction to obey it unless and until that 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 an order believes it to be irregular or even void.” 18.To prove contempt of a court order, an applicant must demonstrate that there are unambiguous terms of a court order, that the respondent was aware of those terms and that the respondent deliberately and willfully disobeyed the said clear terms of the court order. 19.In the instant case, the applicant stated that by having sugarcane harvested from the suit property, the defendant had violated the order of 20th February 2025. 20.It is not disputed that the respondents are aware of the terms of the orders of 20th February 2025. 21.I have considered the orders made on 17th February 2025 and issued on 20th February 2025. The same are consent orders, wherein the court ordered that status quo be maintained, so that the defendant stays within the space he is occupying and does not interfere with the rest of the land until the suit is heard and determined. Further that none of the parties should cultivate the land until the suit is heard and determined. 22.The defendant argued that he has not cultivated the land and that he had an earlier lease agreement with one Luka Matayo who had grown sugarcane on the suit property and that he had not interfered with the remaining parcel but was in occupation of his portion. 23.I note that while parties agreed not to cultivate the suit property until the suit is determined, the order did not bar a party from harvesting what was already growing on the land as of the date of the order. Contempt proceedings are quasi-criminal proceedings and the standard of proof is slightly higher than the standard of proof required in ordinary civil cases of a balance of probabilities, although the same is lower than the standard of proof of beyond reasonable doubt expected in criminal cases. In the premises, I am not persuaded that the plaintiff has met the threshold expected for contempt as against the defendant herein. 24.In the premises, I find no merit in the application dated 18th February 2026 which I hereby dismiss with costs. 25.For the above reasons, the ex parte orders made on 20th February 2026, to the effect that sugarcane proceeds regarding the harvest from parcel No. N. KABRAS/MATSAKHA/848 delivered under permit No. 437726 be deposited in court, are hereby discharged. 26.Therefore, the court hereby orders that the cane proceeds (if) already deposited in court, in respect of permit No. 437726 from parcel No. N. KABRAS/MATSAKHA/848, pursuant to the orders of 20th February 2026, be forthwith released to the owner thereof, one EMMANUEL MALOVA MATAYO. 27.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence of;Mr. Khayumbi for the plaintiffMr. Shiloya for the defendantMr. Ondieki for 1st intended Interested PartyCourt Assistant- Delphine