[2024] KEELC 6033 (KLR)

Ndeto & another v Ndeto (The Administrator of the Estate of Samson Ndeto Kimomo) & 2 others (Environment & Land Case E083 of 2021) [2024] KEELC 6033 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6033 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case E083 of 2021

CA Ochieng, J

September 23, 2024

Between

Alice Mulimi Ndeto

1st Plaintiff

Sammy Nduu Ndeto

2nd Plaintiff

and

Mary Syombua Ndeto (The Administrator of the Estate of Samson Ndeto Kimomo)

1st Defendant

Charles Nzau Ndeto

2nd Defendant

Geoffrey Alala Ochieng

3rd Defendant

Ruling

1. What is before Court for determination is the Plaintiffs’ Notice of Motion Application dated the 14th November, 2023, brought pursuant to Order 39 Rules 2A (2) and 4 and Order 50 Rule 1 of the Civil Procedure Rules including Section 3A of the Civil Procedure Act. The Applicants seek the following Orders:-a.Spentb.That the 1st and 2nd Respondents be required to within 7 days from the date of the orders of this court to show cause why they should not be committed to civil jail for being in contempt of the consent order and further consent order all dated 4th November, 2022, and duly filed and adopted as the final Judgment of the court on adopted this court’s on 4th November, 2022;c.That the 1st and 2nd Respondents herein be committed to civil jail for a period not exceeding 6 months for willfully disobeying the orders of this court issued on 4th November, 2022;d.That the Officer Commanding Police Machakos Police Station be and is hereby ordered to ensure compliance with these orders;e.That costs of this Application be provided for;

2. The Application is premised on the grounds on the face of it and the Supporting Affidavit of Alice Mulimi Ndeto where she deposes that vide a Certificate of Confirmation of Grant dated 1st July, 2019, the Estate of Samson Ndeto Kimomo was distributed. She explains that together with the 2nd Plaintiff, they are each entitled to ten (10) acres to be excised from the parcel of land known as LR No. 2706/8, IR No. 1807676. She contends that since the issuance of the Certificate of Confirmation of Grant, the Interested Party have frustrated their efforts to have their share/portion registered in their own names. She claims the 1st and 2nd Respondents have sold portions of the Estate without accounting to the beneficial owners as such, they are apprehensive that the portions belonging to them, may be sold as well. She explains that this matter was concluded through a consent Judgment but the 1st and 2nd Respondents have failed to implement it. She insists that the 1st and 2nd Respondents were aware of the existence of the orders and/or consent dated the 4th November, 2022 and they were even served in person. She reiterates that despite being served with the orders, the 1st and 2nd Respondents have not effected the transfer, one year down, in blatant disobedience of this court’s orders. Further, that they have willfully chosen to disregard the orders of this court and it is imperative that the Court commits them to civil jail for disobeying the said orders.

3. The 1st and 2nd Respondents opposed the instant Application by filing a Replying Affidavit sworn by Mary Syombua Ndeto where she claims that the 2nd Plaintiff served them with a copy of a Notice of Withdrawal which was also served upon their Counsel. She denies selling any parcel of land as alleged. She avers that she is barred by the Court Orders dated 28th June, 2022 and cannot effect any transfer as required by the Succession Court. Further, that the said Orders are still alive before this Court. She explains that before the Orders were issued against her together with the 2nd Defendant, she had already caused a transfer of ten (10) acres of land to the 1st Plaintiff herein. She contends that the 2nd Plaintiff had filed an Application dated 16th March, 2023 seeking to set aside the consent orders on account that he was not involved in the substantive discussions that culminated in the said consent agreement. He insists that the consent orders are on the verge of being set aside as the 2nd Plaintiff disputes them.

4. The 1st Plaintiff opposed the Application by filing a Further Affidavit reiterating her averments, disputing the facts as stated in the Replying Affidavit, and contending that the 2nd Plaintiff did not have capacity to file a Notice to Withdraw suit since they were still being represented jointly by one firm of advocates.

5. The Application was canvassed by way of written submissions.

Analysis and Determination 6. Upon consideration of the instant Notice of Motion Application including the respective Affidavits and submissions, the only issue for determination is whether the Applicant is entitled to the orders as sought.

7. The Applicants have sought to cite the 1st and 2nd Respondents for contempt of court for disobeying the consent dated the 4th November, 2022, failing to transfer the suit lands to them.

8. From perusal of the court record, I note a consent order was recorded in favour of the Applicants’ on the 4th November, 2022, which was entered as Judgment on 7th November, 2022 wherein, the Court directed that 1st and 2nd Respondents to transfer certain parcels of land to the Applicants.

9. For the avoidance of doubt, I wish to reproduce an excerpt of the impugned Consent Judgment:-“By consent Judgement be entered in favour of the 1st and 2nd Plaintiffs in the following terms:a.That the Defendant shall cause the transfer of parcel title Donyo Sabuk/Kibiko Block 7/889 directly to Geoffrey Alala Ochieng.b.That the Defendant shall cause the excision of a further 10 acres directly attached to parcel Donyo Sabuk/Kibiko Block 7/889 referred to above and transfer it to Geoffrey Alala Ochieng.c.That the Interested Party shall bear the costs associated to and/or related to the transfer of properties referred to in paragraphs (a) and (b) hereinabove.d.That the orders of this Court dated 13th June, 2022 shall only be vacated upon the implementation of paragraphs (a) and (b) hereinabove.e.That the matter shall be mentioned in thirty (30) days from the date of recording of this consent to confirm implementation and/or compliance.f.That each party shall bear their own costs.g.That parcel title No. Donyo Sabuk/Kibiko Block 7/884 be transferred back to the Administrators of the estate of Samson Ndeto Kimomo.h.That parcel title Donyo Sabuk/Kibiko Block 7/885 be transferred back to the Administrators of the estate of Samson Ndeto Kimomo; andi.That parcel title Donyo Sabuk/Kibiko Block 7/880 be transferred back to the Administrators of the estate of Samson Ndeto Kimomo.The above terms are hereby adopted as an order of the Court.”

10. 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.”

11. Section 29 of the Environment and Land Court Act provides punishment for contempt and stipulates thus:-“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.”

12. Further, Section 4(1) (a) of the Contempt of Court Act defines civil contempt as “willful disobedience of any judgement, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court.”

13. In the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi (2016) eKLR, Justice Mativo (as he then was) stated that:-“Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:- ‘there are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases - (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate.”

14. It is not in dispute that there was a consent dated 4th November, 2022 which was adopted as Judgment of the Court on the 7th November, 2022. In the current scenario, I note the 2nd Plaintiff’s Advocate messrs M. M Mutua & Co. Advocates, have written a Letter to Court dated the 11th September, 2024 confirming that Sammy Nduu Ndeto (2nd Plaintiff) was issued with a title. Further, attached to the said letter is a Certificate of Title dated the 17th February, 2022 for Donyo Sabuk/Kiboko Block 7/884 in the name of Sammy Nduu Ndeto. I note the said 2nd Plaintiff sought to withdraw this suit, vide a Notice of Withdrawal of Suit dated the 17th September, 2022, that was filed in Court on 14th October, 2022, prior to the entry of the Consent Judgement. Further, I note the 1st Plaintiff has also been issued with Certificates of Title dated the 17th February, 2022 for Donyo Sabuk/Kiboko Block 7/880 and 885 respectively, prior to the entry of the consent on 7th November, 2022. From the foregoing, I opine that the only issue left on the implementation of the consent is transfer of ten (10) acres to Geoffrey Alala Ochieng.

15. The 1st and 2nd Respondents have explained that they are unable to effect further transfers as there is a Court Order barring them from interfering with the suit lands. From the Court Record, I note vide a Ruling delivered on 13th June, 2022, this Court issued orders for the preservation of entire parcels of land belonging to the estate of Samson Ndeto Kimomo from being disposed off by the Administrators, who are the 1st and 2nd Respondents herein, pending the outcome of the main suit. Further, in the Consent Judgment at Order (d) the parties stated that orders of this Court dated 13th June, 2022 shall only be vacated upon transfer of ten (10) acres of land to Geoffrey Alala Ochieng.

16. It is my considered view that there seems to be an ambiguity in the consent order because how does the Plaintiffs’ expect the 1st and 2nd Respondents to excise and transfer ten (10) acres of land to Geoffrey Ochieng Alala, if a preservation Order barring them from dealing with the suit land is still in place. In my view, since the Order barred the 1st and 2nd Respondents from proceeding as required by the consent, then they cannot be deemed be in contempt of court.

17. It is trite that contempt proceedings are criminal in nature and the burden of proof is upon the Applicants to prove the same commenced after the Court issued its order and is still ongoing. However, from what I have highlighted above, noting that the 1st and 2nd Plaintiffs have received their respective parcels of land and are not acting in unity, I opine that they have failed to prove their allegations of contempt as against the 1st and 2nd Respondents.

18. Based on the facts as presented while associating myself with the decision quoted as well as the legal provisions cited above, I find in the current circumstances, the Notice of Motion Application dated the 14th November, 2023 is unmerited and will dismiss it.

19. Costs will be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 23RD DAY OF SEPTEMBER, 2024CHRISTINE OCHIENGJUDGEIn the presence of:Omondi holding brief for Lumumba for Applicant/PlaintiffCourt Assistant – Simon/Ashley