[2019] KEHC 5907 (KLR)
The court found that the applicant failed to prove, on the required standard, that the administratix had disobeyed the court order prohibiting dealings with the subject land parcels. The administratix had denied the allegations in her replying affidavit and provided documentary evidence suggesting the applicant...
Source-derived case information.
- Citation
- [2019] KEHC 5907 (KLR)
- Parties
- Applicant: Peter Anyona Moseti; Respondent: Josephine Bitutu Angwenyi
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 214 of 2015
- Procedural Posture
- Succession Cause / Ruling on Contempt Application
- Outcome
- application dismissed with costs to the administratix
- Judges
- EM Muchoki
- Legal Topics
- Contempt of Court, Succession Orders, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Anyona Moseti
Applicant
Josephine Bitutu Angwenyi
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the administratix violated the court order prohibiting dealings with the subject land parcels.
- 2 Whether the applicant proved contempt of court to the required standard.
- 3 Whether the application for contempt is an abuse of court process.
Ratio Decidendi
The court found that the applicant failed to prove, on the required standard, that the administratix had disobeyed the court order prohibiting dealings with the subject land parcels. The administratix had denied the allegations in her replying affidavit and provided documentary evidence suggesting the applicant himself had sold the land prior to the issuance of the order. The applicant did not provide sufficient evidence to support his claim of contempt. The court concluded that the application was an abuse of process and dismissed it with costs to the administratix, reiterating the importance of compliance with court orders by all parties and their advocates.
Court Disposition
application dismissed with costs to the administratix
Orders
- The application is dismissed with costs to the administratix.
- The parties are reminded of the order of this court issued on 8th November 2018.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
SUCCESSION CAUSE NO. 214 OF 2015
PETER ANYONA MOSETI........................................................APPLICANT
=VRS=
JOSEPHINE BITUTU ANGWENYI...RESPONDENT/ADMINISTRATIX
RULING
Before me is a Notice of Motion filed herein on 21st February, 2019 by Peter Anyona Moseti, the applicant. The application which is supported by an affidavit of the applicant sworn on 20th February, 2019 seeks to cite the administratix herein for contempt and to commit her to jail for a period not exceeding six months for violating the order issued by this court on 8th November 2018. It is the applicant’s contention that the administratix has sold a portion of the land the subject of this cause despite this court’s order that there shall be no dealings on parcel Nos. West Mugirango/Bosamaro West/2225, 2226 and 2227 whether by the administratix or the applicant or other registered proprietors pending the hearing and determination of this succession cause. The applicant contends that since the issuance of the order the administratix has sold a portion of the land to a third party who has embarked on constructing a permanent structure on the land.
The application is vehemently opposed. In her replying affidavit the administratix shifts blame to the applicant and contends that it was he who sold the impugned portion of the land. She contends that he did so fraudulently long before the orders of this court were issued. She has annexed a copy of the sale agreement between the applicant and the third party as well as a picture of the structure being erected on the land by the said third party.
The application was canvassed by way of written submissions. Mr. Soire, Counsel for the applicant reiterated the applicant’s allegation that the administratix has sold the portion of the land; that her replying affidavit is totally silent about the allegation and that she has not denied knowledge of the existence of the order so she should be cited for contempt for disobeying the order.
On his part, Mr. Ombachi, Counsel for the administratix submitted that the applicant has not proved the allegation against the administratix to the standard required to warrant this court to grant the orders sought. Mr. Ombachi submitted that it is the applicant who sold the land before this court issued the orders that he accuses the administratix of disobeying.
I have carefully considered the application, the grounds thereof, the affidavits, annextures thereto and the rival submissions. I am not persuaded that this application has merit. First of all, it is wrong to allege that the administratix has said nothing in her replying affidavit about the allegations made by the applicant. She has at paragraph 4 of the replying affidavit denied that she disobeyed the orders. She has even gone beyond that and annexed a purported sale agreement between the applicant and one Job Mongare Ondari in respect of that parcel of land. She has also annexed a copy of an application filed by the “purchaser” in Kisii Chief Magistrate’s Court Land Case No. 15 of 2018 in which the “purchaser” lays claim to the parcel of land. The applicant has himself not demonstrated the allegations against the administratix by way of evidence. This application is clearly an abuse of the process of this court. It is dismissed with costs to the administratix. The parties are once again reminded of the order of this court issued on 8th November 2018 and the Advocates are cautioned that as officers of this court they have a duty to explain and see to it that their clients obey the orders. It is so ordered.
Signed, dated and delivered at Nyamira this 11th day of July 2019.
E. N. MAINA
JUDGE