[2017] KEHC 3000 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 23 OF 2017

FORMERLY MERU PETITION CASE NO. 31 OF 2016

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL FREEDOMS AS ENSHRINSHED

UNDER CHAPTER 4 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLES 27, 40, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA

BETWEEN

NKOROI NJERU.....................................................PETITIONER

VERSUS

DISTRICT LAND ADJUDICATION & SETTLEMENT

OFFICER MERU SOUTH DISTRICT..........1ST RESPONDENT

DIRECTOR OF LAND ADJUDICATION...2ND RESPONDENT

HON. ATTORNEY GENERAL....................3RD RESPONDENT

BAUNI M’NKAMBI......................................4TH RESPONDENT

RULING

1. This ruling concerns two applications both filed by the petitioner.

2. The 1st application is dated 5. 4.2017 and seeks orders:

1. That the honourable court be pleased to commit the 4th defendant i.e. BAUNI M’NKAMBI to civil jail for a period not exceeding six (6) months for disobeying this honourable court orders issued on 7th March, 2017.

3. The application has the following grounds:

(a) The orders of 7. 3.2017 preventing the 4th defendant from interfering with the disputed parcel No. (sic)1234 and 1415 was issued in the presence of the 4th respondent and his counsel.

(b) That in disobedience of this (sic) orders on 4. 4.2017 and 31st March. (sic)

(c) That 30. 3.22017 the 4th defendant assaulted the petitioner’s son when he invaded the disputed area.

(d) That courts orders fare not issued in vain.

(e) That I now pray for the committal of the 4th respondent to civil jail so that it can be an example to others.

4. The second application is dated 5th October, 2017 but was filed on 6. 8.2017, three months before and seeks the following orders.

1. That the Hon. Court be pleased to order for all immovable properties of the 4th respondent i.e land to be attached and sold or ALTERNATIVELY order for the 4th respondent herein to be detained in prison for a term not exceeding six (6) months.

2. That the Hon. Court be pleased to issue any other orders it may deem fit for the interest of justice.

3. That costs of this application be in the cause.

5. The application has the following grounds:

a) That on 7. 3.2017 this Hon. Court issued restraining orders restraining the defendant from entering or remaining in the disputed land registration No. (sic) 1243 & 1415 of lower KANDUNGU Registration Section.

b) That it is the petitioner who is utilizing the disputed parcels herein.

c) That notwithstanding the issuance and service of the orders of 7th March, 2017 upon the 4th defendant he has adamantly, persistently and ruthlessly been trespassing to (sic) the petitioner’s land and doing a lot of wanton destructions.

d) That the police have tried to restrain him in vain.

e) That the 4th respondent was dully served and admitted the same on 20th July, 2017 before the Hon. Court and the counsel for the Respondent admitted that he was dully (sic) served and it was found that he had trespassed/done contempt and was furiously warned by the court through his counsel.

f) That notwithstanding the restraining orders in force on several days especially on 13th September, 2017 the 4th respondent trespassed into the petitioner’s land and did mass destructions.

g) That also the 4th respondent did much destruction to the petitioner’s crops

i. 34 stems of bananas

ii. 70 miraa trees cut down

iii. 500 stems of peppers

iv. 30 graveria trees cut down all valued at Kshs.150,000/= (one hundred fifty thousand shillings only).

h) That now it is confirmed that the 4th respondent does not respect the rule of law or court orders.

i) That it is the law that court orders are not issued in vain.

j) That now it is apt for this Hon. Court to issue appropriate orders against the 4th respondent so that for once court orders can be respected.

6. Regarding both applications, the petitioner has told the court that the 4th respondent lives on parcel No. 1415, Lower Kandugu. This means that implementation of this court’s orders issued vide a ruling dated 7th March, 2017 would amount to a backdoor eviction. This is not tenable. Those orders are vacated. I opine that had the court been seized of this information, those orders would not have been granted.

7. As the 2nd application seems to be predicated on the presumed disobedience of court orders, the vacation of those orders renders this application redundant.

8. In the circumstances, both applications are dismissed with costs to be in the cause.

9. Mr. Muriithi, for 4th defendant, as he has requested to serve all apposite documents upon the 1st to 3rd Respondents within 5 days of today.

10. As the parties have already filed submissions concerning the petition, and as they have requested, directions to fix a date for the apposite Judgment/ Ruling will be taken on 30. 10. 2017.

11. At the request of Miss Baikiata for the 1st to 3rd respondents, with the concurrence of Mr. Muriithi, for the 4th respondent directions will be taken on 7. 11. 2017, when possibly, the date for the Petition’s Judgment/Ruling will be fixed.

12. It is so ordered.

Delivered in open court at Chuka this 9th day of October, 2017 in the presence of:

CA: Ndegwa

Mutani h/b Ogoti for Petitioner

Miss Baikiata for 1st, 2nd and 3rd Respondents

P. M. NJOROGE

JUDGE