[2004] KEHC 2359 (KLR)
The court found that the applicant's claim of new facts was unsubstantiated, as the subdivision of his land and the positions of the resulting parcels were facts within his knowledge since 1996. The applicant failed to provide any documentary evidence, such as an index map, to support his assertion that his land did...
Source-derived case information.
- Citation
- [2004] KEHC 2359 (KLR)
- Parties
- Plaintiff: Peter Mose Ogero; Plaintiff: James Mainye Ogero; Plaintiff: Benson Ogutu Ogero; Defendant: Stanley Ondoro Boraya
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 16 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Contempt Finding and Sentencing
- Outcome
- Application for review dismissed; applicant sentenced for contempt of court.
- Judges
- K Bauni
- Legal Topics
- Contempt of Court, Review of Orders, Consent Orders, Access Roads, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mose Ogero
Plaintiff
James Mainye Ogero
Plaintiff
Benson Ogutu Ogero
Plaintiff
Stanley Ondoro Boraya
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Contempt Finding and Sentencing
Legal Issues
- 1 Whether the applicant has discovered new and important facts to warrant review of the contempt ruling.
- 2 Whether the applicant's failure to comply with the consent order was justified by the alleged land boundaries.
- 3 Whether the court's order for access over the applicant's land remains enforceable.
Ratio Decidendi
The court found that the applicant's claim of new facts was unsubstantiated, as the subdivision of his land and the positions of the resulting parcels were facts within his knowledge since 1996. The applicant failed to provide any documentary evidence, such as an index map, to support his assertion that his land did not abut the plaintiffs'. The consent order, which required the applicant to allow passage over his land pending determination by the Land Registrar and Surveyor, remained in force and had not been complied with. The court held that the applicant's application for review lacked merit, as no new or important evidence had been discovered, and the applicant's knowledge of the...
Court Disposition
Application for review dismissed; applicant sentenced for contempt of court.
Orders
- The application for review is dismissed with costs to the respondents.
- The applicant is fined KES 40,000 in default three months imprisonment for contempt of court.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT 16 OF 2003
PETER MOSE OGERO )
JAMES MAINYE OGERO ) ………………………………….. PLAINTIFFS
BENSON OGUTU OGERO )
VERSUS
STANLEY ONDORO BORAYA ……………………………….. DEFENDANT
RULING:
On 25th march 2004 this court delivered a ruling finding the applicant/defendant to be in contempt of court. He was not in court on that day for sentencing. There after he brought this application seeking court to review its said ruling. He submitted that he has found new and important facts being that his land No. GESIMA/337 does not abuts that of the plaintiff and therefore he could not open the access road as directed by the court. It was submitted that if the court was aware of this then it would not have made the ruling. The application was opposed.
I have considered the application. I find it has no merit. There are no new facts which the applicant has discovered. First he states that there are other lands between his land and that of the plaintiffs. He did not attach any map to prove this. I concur with respondents that it would have been easy to get the index map and annex it to his affidavit to prove his claim. He did not do this.
Secondly the applicant told court that he subdivided his land Gesima Settlement Scheme/2 in 1996 which gave rise to Gesima/337, 338, 340, 343 and 344 all the way back in 1996. This is a fact which has been within his knowledge from that time.He knows well the position of each parcel of land. This fact is therefore not knew to him and he cannot say that it could not be easily be discovered. It was a fact within his knowledge and he cannot say that he has just discovered it.
The applicant was cited for contempt for disobeying an order entered into by court.This order is still in force. Even when the parties entered into the consent that the applicant allow passage over his land, the applicant knew that he had subdivided his land and he knew the position of each parcel of land. The court order was entered into on 6/2/03 and the subdivision was done in 1996 – about 7 years earlier. He never sought to enjoin the owners of those other parcels in the suit.
Counsel for the applicant submitted that if the Land Registrar went to the land he would confirm that the applicant’s land do not abuts that of the respondents. This could well be so and again I believe parties were well alive to this when they entered into the consent order. The first limb of that consent order was that the District Land Registrar and Surveyor visit the disputed lands and determine whether there was a road of access.
In the second limb they agreed that pending to such determination the applicant allow free passage. Court has been told that the two Government officials have yet to visit the land. Thus the determination is still pending. In fact the consent order was that pending the determination of the suit, applicant allow free passage. This was an order entered by consent and it is still in force. It is the order the applicant disobeyed and continues to disobey. His application therefore lacks any merit at all and is dismissed with costs.
Court will move to sentence him.
KABURU BAUNI
JUDGE
6/5/04
Signed and dated and delivered on 6/5/04 in presence of Mr. Masese and Omwamba and the applicant.
KABURU BAUNI
JUDGE
Court: Court to proceed for sentencing.
KABURU BAUNI
JUDGE
Contemnor in mitigation:
I have a sick wife in hospital who depends on me. I have a son admitted at memorial Hospital. He was operated on.
I also have a daughter who was supposed to proceed to University. She is suffering from ulcers.
I am 70 years old. I am weak. I am also councilor of Nyansiongo Town Council. I have never been in court before. I pray for leniency. If I am jailed my family will suffer.
Court: The court notes the mitigation. However court also notes that contemnor never purged the contempt. He is not even saying that he is going to.
SENTENCE:
Contemnor is fined shs.40,000/= (Fourth Thousand) in default 3 months imprisonment. He should purge the contempt forthwith.
KABURU BAUNI
JUDGE
6/5/04