[2018] KEELC 3800 (KLR)
The court found that the plaintiffs failed to provide evidence that the defendants sub-divided, sold, or fenced the suit land after the status quo order of 22nd May, 2014. The share certificates and other evidence indicated that the relevant actions occurred prior to the issuance of the order. Without proof of...
Source-derived case information.
- Citation
- [2018] KEELC 3800 (KLR)
- Parties
- Plaintiff: Rashid Mutua; Plaintiff: Mukai Mbai Muvinga; Plaintiff: Angeline Mutile Muthoka; Plaintiff: Kyalo Nyumbu Kyaka; Defendant: Peter Kyalo Mutua; Defendant: Nzioki Wilson Ndutu; Defendant: Daniel Mulandi Kikunze; Defendant: Rosemary K. Mutunga; Defendant: Julius Kioko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 75 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt and Enforcement Applications
- Outcome
- applications dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Contempt of Court, Status Quo Orders, Land Subdivision, Enforcement of Court Orders
- 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
Rashid Mutua
Plaintiff
Mukai Mbai Muvinga
Plaintiff
Angeline Mutile Muthoka
Plaintiff
Kyalo Nyumbu Kyaka
Plaintiff
Peter Kyalo Mutua
Defendant
Nzioki Wilson Ndutu
Defendant
Daniel Mulandi Kikunze
Defendant
Rosemary K. Mutunga
Defendant
Julius Kioko
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Contempt and Enforcement Applications
Legal Issues
- 1 Whether the defendants disobeyed the court order of 22nd May, 2014 by sub-dividing, allocating, and fencing the suit land after the order was issued.
- 2 Whether the defendants should be cited for contempt and committed to civil jail for alleged breach of court orders.
- 3 Whether the OCS Athi River Police Station should be directed to enforce the court orders.
Ratio Decidendi
The court found that the plaintiffs failed to provide evidence that the defendants sub-divided, sold, or fenced the suit land after the status quo order of 22nd May, 2014. The share certificates and other evidence indicated that the relevant actions occurred prior to the issuance of the order. Without proof of post-order acts in breach of the court's directive, the application for contempt could not be sustained. The court also noted that not all parties in Machakos CMCC No. 1151 of 2013 were parties to the present suit, and that the Chief Magistrate's Court had already ruled on its lack of pecuniary jurisdiction. Consequently, both applications were dismissed with costs.
Court Disposition
applications dismissed with costs
Orders
- The applications dated 30th June, 2017 and 21st September, 2017 are dismissed with costs.
- No orders for committal for contempt are made.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. MISC. APPLN. NO. 75 OF 2013
RASHID MUTUA...............................................................1ST PLAINTIFF
MUKAI MBAI MUVINGA .................................................2ND PLAINTIFF
ANGELINE MUTILE MUTHOKA .....................................3RD PLAINTIFF
KYALO NYUMBU KYAKA ................................................4TH PLAINTIFF
VERSUS
PETER KYALO MUTUA...............................................1ST DEFENDANT
NZIOKI WILSON NDUTU ..........................................2ND DEFENDANT
DANIEL MULANDI KIKUNZE ....................................3RD DEFENDANT
ROSEMARY K. MUTUNGA ........................................4TH DEFENDANT
JULIUS KIOKO ...........................................................5TH DEFENDANT
RULING
1. This Ruling is in respect to the Applications dated 30th June, 2017 and 21st September, 2017. In the Application dated 30th June, 2017, the Plaintiffs are seeking for the following orders:
a. That Defendants/Respondents herein to be cited for contempt and committed to civil jail for six (6) months.
b. A warrant of arrest be issued against the Defendants/Respondent to show cause why they should not be committed to civil jail or any such sentence as the court may deem fit to make up for that blatant breach and contempt of court order issued and in the alternative the Respondents be ordered to hereforth and immediately purge the contempt of court.
c. Costs of this Application be provided for.
2. The Application is premised on the grounds that in disregard of the orders issued on 22nd May, 2014, the Defendants have proceeded to the suit land and commenced sub-dividing, allocating and fencing the land; that the Defendants’ disregard of the orders of the court is meant to create anarchy and chaos and that the Defendants were personally served with the orders of the court.
3. According to the Plaintiffs’ Affidavit, on 8th May, 2017, the Defendants invaded the suit land and sub-divided it and should therefore be committed to civil jail for disobeying the orders of the court.
4. In response to the Application, the 1st Defendant averred that the suit land was sub-divided way back on 8th April, 2013; that as at 22nd May, 2014, sub-division and allocation of the land had been done and that the fencing of the land was done by individual members after the plots were allocated to them in September, 2013.
5. In the Application of 21st September, 2017, the Plaintiffs are praying for an order that the OCS, Athi River Police Station should ensure compliance of the orders of the court and that there be a stay of proceedings in CMCC No. 1151 of 2013 Machakos.
6. In response, the 1st Defendant deponed that Machakos CMCC No. 1151 of 2013 and the present suit are totally different; that the Plaintiffs herein are not parties in CMCC No. 1151 of 2013 and that the issue that the two suits do not involve the same parties was determined by a Ruling delivered on 18th February, 2015.
7. The parties filed brief submissions which I have considered.
8. The record shows that on 22nd May, 2014, the court directed that the parties do maintain the current obtaining status quo. The said status quo was not defined.
9. The term status quo was defined in the case of Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR to mean “the way things stand as at the time the order is made, the existing state of things.”
10. The Defendants have annexed the share certificates by “Athi River Slum Dwellers” showing that the said certificates were issued in the year 2013. Indeed, the Plaintiffs did not adduce any evidence to show that the sub-division of the suit land was done subsequent to the order of status quo being made.
11. In the absence of any evidence to show that the Defendants sub-divided, sold or fenced the land after the order of 22nd May, 2014, I find the Application dated 30th June, 2014 to be unmeritorious.
12. Having found the Defendants not guilty for disobeying the orders of the court, I do not see why I should direct the police to enforce the orders of this court. The parties should fix this matter for hearing so that the issue of ownership can be determined expeditiously.
13. Although the Plaintiffs are seeking for a stay of Machakos CMCC No. 1151 of 2013, not all the parties in that matter are also parties in this matter. In any event, I have read the Ruling of the Chief Magistrate in CMCC No. 1151 of 2013 in which the court held that it does not have the pecuniary jurisdiction to entertain the matter.
14. For those reasons, I dismiss the Applications dated 30th June, 2017 and 21st September, 2017 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 13TH DAY OF APRIL, 2018.
O.A. ANGOTE
JUDGE