[2014] KEHC 6509 (KLR)
The court found that the Respondent, David Rono, was duly served with clear and unambiguous court orders restraining him from further construction on the disputed land and requiring him to open the access road. The Applicant provided uncontroverted evidence, including affidavits of service and photographs,...
Source-derived case information.
- Citation
- [2014] KEHC 6509 (KLR)
- Parties
- Applicant: Raeli Tapsabei (substituted by Chirchir Paul Kipsang); Respondent: David Rono
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 41 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Motion, Pending Mitigation and Sentencing
- Outcome
- Respondent found in contempt of court; conviction entered. Sentencing deferred pending mitigation.
- Legal Topics
- Contempt of Court, Injunctive Orders, Land Disputes, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raeli Tapsabei (substituted by Chirchir Paul Kipsang)
Applicant
David Rono
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Contempt Motion, Pending Mitigation and Sentencing
Legal Issues
- 1 Whether the Respondent, David Rono, was served with valid court orders restraining further construction and requiring opening of access road.
- 2 Whether the Respondent willfully disobeyed the court orders, amounting to contempt of court.
Ratio Decidendi
The court found that the Respondent, David Rono, was duly served with clear and unambiguous court orders restraining him from further construction on the disputed land and requiring him to open the access road. The Applicant provided uncontroverted evidence, including affidavits of service and photographs, demonstrating that the Respondent had knowledge of the orders and willfully disobeyed them by continuing construction and refusing to open the access road. The Respondent neither responded to the application nor appeared in court to contest the allegations. The court held that the Respondent's conduct amounted to contempt of court and convicted him accordingly, noting that the...
Court Disposition
Respondent found in contempt of court; conviction entered. Sentencing deferred pending mitigation.
Orders
- Respondent convicted of contempt of court for disobeying court orders.
- Case adjourned to 19/03/2014 for mitigation and sentencing.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
MISCELLANEOUS CIVIL SUIT NO. 41 OF 2013
IN THE MATTER OF THE CHIEF MAGISTRATE'S COURT CIVIL CASE NO.375 OF 2013
BETWEEN
RAELI TAPSABEI.......................................PLAINTIFF/APPLICANT
AND
DAVID RONO.....................................DEFENDANT/RESPONDENT
BETWEEN
RAELI TAPSABEI..........................................................APPLICANT
VERSUS
DAVID RONO............................................................RESPONDENT
RULING
The subject matter of this ruling is the Motion dated 11th November, 2013 taken out by Raeli Tapsabei, hereinafter referred to as the Applicant in which she sought for the following orders:
THATthe Respondent named herein, David Rono be committed to jail for contempt of court for disobeying the orders of this court given by Honourable Lady Justice Waithaka on 25th September 2013.
THATsaid Respondent be ordered or be kept in prison for a term of not exceeding (6) months or for such terms as this Honourable court may deem fit to order.
THATthe Respondent do pay costs of this application.
The aforesaid Motion was served upon David Rono, hereinafter referred to as the Respondent. The same did not elicit any response from the Respondent.
When the Motion came up for interpartes hearing, the Respondent, again, failed to turn up despite having been served with a hearing notice. This court permitted the Applicant's advocate to proceed exparte to prosecute the Motion.
I have considered the grounds set out on the face of the Motion plus the facts deponed in the affidavits filed in support of Motion. It is the applicant's submission that on 25/09/2013 Lady Justice Waithaka vide Kericho E&L.C. no.58 of 2013 issued an order of temporary injunction to restrain the Respondent from carrying out further constructions on the parcel of land known as L.R.no. Kericho/Silibwet/2713 and to open up the access leading to the suit premises. That order was served upon the Respondent on 8th October 2013 by Stephen K. Chebochok a private process service at the suit land while he was supervising the construction of the structure in dispute. It is argued that despite receiving the court order, the Respondent has disregarded the same and has continued with the construction of the building and also refused to open the access road to the Applicant's residence. The Applicant annexed photographs showing the extent of construction.
It is said that the building is now on the 2nd floor. Raeli Tapsabei, passed away on 13th November 2013 and was succeeded by Chirchir Paul Kipsang who successfully obtained limited letters of administration intestate. In a further affidavit of Chirchir Paul Kipsang sworn on 13th February 2014, he stated that he substituted the late Raeli Tapsabei as the Plaintiff in Kericho E&L.C case no.58 of 2013 which was transferred to Kericho Chief Magistrate's Court and renumbered as Kericho C.M.C.C.C no.375 of 2013. Annexed to the further affidavit is the order issued by Hon. Soita, learned Chief Magistrate on 12/11/2013 confirming the interim orders issued on 25th September 2013. The confirmed orders were again served upon the Respondent on 2nd December 2013 as evidenced by the affidavit of service of Stephen Chebochok sworn on 7th January 2014. It said that this time round the Respondent ignored the orders and continued with the construction of the building now reaching 3rd floor level. The averments made in the two affidavits together with the annexures are not contested nor controverted by the Respondent. It is clear in the language used in the orders served and exhibited before this court that the Respondent was prohibited from further constructing the building standing on L.R.no.Kericho/Silibwet/2713. He was also ordered to open the access road leading to the residence of the late Raeli Tapsabei. He has blatantly refused to obey those orders. I find David Rono, the Respondent herein to be in contempt of court hence he is hereby convicted. I have been asked to put him in priosn for six months or in the alternative make any order I deem fit. These proceedings being quasi criminal, I think it is only fair to give the Respondent a chance to Mitigate to enable this court mete out the appropriate punishment.
Dated, Signed and delivered in open court this 14th day of March, 2014.
….................
J.K.SERGON
JUDGE
In the presence of:
Mr. Mutai holding brief for Mr. Orina for Respondent
Mr. Mutai for the Applicant
Mr. Mutai
I pray for time to enable Mr. Orina contact his client so that he can be present himself to Mitigate.
Mutai: No objection
Court: This case is adjourned to 19/03/2014 for Mitigation. I direct that David Rono, the Respondent herein, be personally present in court on the aforesaid date. If the Respondent defaults to appear before this court, may issue a warrant of arrest to have him apprehended by the relevant authorities for committal.
…..................
J.K.SERGON
JUDGE