[2023] KEHC 23730 (KLR)

Republic v Chief Lands Registrar; Kaptoror Holdings Limited (Exparte Applicant) (Judicial Review Miscellaneous Application 1411 of 2001) [2023] KEHC 23730 (KLR) (Judicial Review) (17 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23730 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 1411 of 2001

JM Chigiti, J

October 17, 2023

Between

Republic

Applicant

and

Chief Lands Registrar

Respondent

and

Kaptoror Holdings Limited

Exparte Applicant

Ruling

1. The Ex-parte Applicant filed an Application dated 26th November, 2021 by way of a Notice of Motion seeking the following orders:1. Spent.2. That the Honorable Court be pleased to grant leave to the ex parte Applicant to appoint m/s Rachier & Amollo Advocates LLP, post-judgment.3. That the Honorable Court be pleased to issue a Notice to Show Cause to the Respondent, Chief Lands Registrar to personally attend Court and show cause as to why he should not be cited for contempt of the judgment and decree of this Honorable Court issued on the 30th of July 2003. 4.That the Honorable Court be pleased to cite the Respondent Chief Lands Registrar for contempt of its ruling and order dated and delivered on 30 July 2003 by Hon. Mr Justice Rimita, more particularly for unreasonably and maliciously refusing to comply with the Court Decree of Mandamus compelling him to register the transfer of that parcel of land known as L.R. No. 10394 Grant No. I.R. 17434/1 in favour of Kaptoror Holdings Limited the Applicant herein.5. That the Honorable Court be pleased to commit the Respondent Chief Lands Registrar to civil jail for six (6) months or such other period that the Court deems just in the circumstances, until the Contempt of Court aforesaid is purged in full more particularly by effecting unconditional registration of the transfer of that parcel of land known as L.R. No.10394 Grant No. I.R. 17434/1 in favour of Kaptoror Holdings Limited the Applicant herein.

2. In opposing the Application, the Respondent filed a Notice of Preliminary Objection dated 22nd day of March 2023 on the following grounds that;1. That the Application is premised on Section 5 of the Judicature Act which was repealed by virtue of the Contempt of Court Act Cap 46 of 2016 being declared unconstitutional vide a ruling delivered on 9 November, 2018 in Constitutional Petition No. 87 of 2017-Kenya Human Rights Commission Vs- the Honourable Attorney General and Another.2. That there is now no substantive law that provides for what constitutes contempt of court, the procedure to be followed, power of/and which Court can punish for contempt of court and prescribed the penalty for contempt of court.3. That the application is fatally defective as the alleged contemnor is not named.4. That the application dated 26th November, 2021 seeks to cite for contempt the Chief Land Registrar yet the Order issued on 30th July, 2003 was directed to the Registrar of Titles.

Attorney General Case: 3. It is the Attorney-General's submission that the firm of Ms Rachier and Amollo Advocates LLP is not properly on record since the application for leave to come on record for the Exparte Applicant post judgment has not yet been allowed as a result of which the application is a bad in law, incompetent and fatally effective ab initio.

4. Reliance is placed on the case Lalit Bhimil Shangani Builders & Contractors-Vs- City Council of Nairobi (2012| eKLR where the Court held as follows:“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate."

5. The AG argues that the application is fatally defective and should be truck out on that account.

Does The Court Have Jurisdiction Of The Court To Punish Contempt? 6. It is the Attorney-General's submission that this Honourable Court lacks the requisite jurisdiction to hear and determine the application on the basis upon which the application is made. This is pursuant to the Honourable Court's decision in HCPT No. 87 of 2017- Kenya Human Rights Commission vs the Honourable Attorney General & Another [2018 eKLR which declared the Contempt of Court Act unconstitutional.

7. Section 5 of the Judicature Act was repealed pursuant to the enactment of the Contempt of Court Act No. 46 of 2016. What that meant was that Section 5 of the Judicature Act ceased being the law and could therefore not be relied on or used to punish alleged contemnors.

8. Therefore, the declaration of the Contempt of Court Act as unconstitutional meant that we could not go back to Section 5 of the Judicature Act as it was already repealed and has not been re-enacted.

9. The Ag relies in Misc. Civil Application No 491 of 2004; Republic -vs- The Principal Magistrate's Court at Githunguri Ex- Parte James Kahuha Thuo |2005| eKLR Nyamu J held that:“It is irresistible for the Court to find that the two applicants have been charged with offences not defined anywhere or with offences not known to law. The Court finds that the very act of charging them with non-existent offences is an unlawful act. It is a cardinal principle of the rule of the law that a person can only be charged with breaches of law in ordinary courts and with nothing else.

10. According to the AG there is no evidence of personal service of the contempt application upon the Respondent and the application is fatally defective.

Ex-parte Applicants Submissions 11. The ex-parte applicant submits that this is a new issue, irregular raised within the Respondent's submissions, when in fact it was not pleaded in the Preliminary Objection dated 22nd March 2023, and the response thereto was therefore not contemplated and or considered within the ex-parte applicants replying affidavit filed in opposition to the preliminary objection on 18th May 2023, a that the court should disregard this particular issue improperly brought.

12. Reliance is placed in the case of Oraro vs Mbaja (2005) 1KIR 141, Where it was held that “Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence".

13. The prayer for leave to be granted to the ex-parte applicants to come on board post judgement has never been denied by this court or any other court.

14. Further, the ex-parte applicant has equally notified its former advocates of these proceedings and they have appeared before this very court. As to whether they consent to the current representation chosen by the applicant is a separate issue, which does not deprive the ex-parte applicant's current, advocates the locus stand to represent it in the present proceedings. If they decline to issue consent, then this becomes one of the issues for determination in the application sought to be struck out; Accordingly, the objection as raised is not only ill-advised, it is premature and presumptuous.

15. The ex parte Applicant does not agree with The Respondent has submitted that there is no law on contempt given that the Contempt of Court Act repealed Section 5 of the Judicature Act which provided for the procedure for contempt prior to the enactment of the Contempt of Court Act.

16. Employment and Labour Relations Court vide its Ruling dated 6th August 2021 in Judicial Review No. 9 of 2021 Henry Musemate Murwa versus Dr. Francis Owino, The Principal Secretary Ministry of Public Service, Youth and Gender Affairs where the court considered the applicability of section 5 of the Judicature Act following the aforesaid decision and held as follows;“Having clearly identified the contemnor from the ex-parte applicant's application, the Respondent can absolutely not be allowed to state that the contemnor is not named.”

17. Reliance is placed in the case of Samuel M. N.Mweru & Others v National Land Commission & 2 others [20201 eKLR where he stated -“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove;(i)the terms of the order,(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order.

18. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.

19. It is clear that the law governing contempt of court has evolved. Knowledge of the orders one is said to be in contempt of and the willful disobedience of the same is enough to prove contempt of court.

20. The Exparte Applicant argues that the Chief Lands Registrar has been properly cited in the contempt application, it being the office that holds final responsibility and accountability over all Land Registrars within the Republic of Kenya.

21. The Chief Lands Registrar was correctly cited in the contempt application dated 26th November 2021 as the office ultimately bears the responsibility of all registries and consequently all registrars under it.

Analysis And Determination: 22. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.At page701 paragraph B-C Sir Charles Newbold, P. added the following:A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....”

23. On 18th July, 23 when the court gave parties directions on how the Notice of Preliminary Objection dated 22nd day of March....2023 would be dispensed with, the respondent did not seek leave to amend the notice of preliminary objection. It is apparent from the Respondents submissions that it introduced a new ground of objection to the prejudice of the applicant. This amounts to an abuse of the court and the same is hereby struck out.

Does The Court Have Jurisdiction Of The Court To Punish Contempt? 24. It is the Attorney-General's submission that this Honourable Court lacks the requisite jurisdiction to hear and determine the application on the basis upon which the application is made.

25. This court is guided by the Employment and Labour Relations Court vide its Ruling dated 6th August 2021 in Judicial Review No. 9 of 2021 Henry Musemate Murwa versus Dr. Francis Owino, The Principal Secretary Ministry of Public Service youth and Gender Affairs where the court considered the applicability of section 5 of the Judicature Act following the aforesaid decision and held as follows;“22. The Respondent has submitted that there is no law on contempt given that the Contempt of Court Act repealed Section 5 of the Judicature Act which provided for the procedure for contempt prior to the enactment of the Contempt of Court Act.23. I do not agree with the Respondent. Having been declared unconstitutional, all the provisions of the Contempt of Court Act, including the repeal of Section 5 of the Judicature Act, became a nullity. It is as if the Contempt of Court Act was never enacted. This means that Section 5 of the Judicature Act was reinstated following the nullification of the Contempt of Court Act.”

26. I am of a similar view and this limb of the Notice of preliminary Objection fails.

The 3Rd Issue Is Whether The Alleged Contemnor Personally Served With The Contempt Application: 27. In Basil Criticos v Attorney General and 8 Others [2012] eKLR Lenaola J. (as he then was) stated as follows: -“…the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary. 2. 3.6Your Honour from the letters annexed to the Ex-Parte Applicant's Replying Affidavit dated 16th May 2023, it is clear that the Chief Lands Registrar was aware of these orders and the need to fulfil them.

2. 3.7In any event your Honour, there exists only one Chief Land Registrar within the Republic of Kenya. There is no apparent need to have him personally named as the office cannot possibly be confused with any other. To claim that not personally naming the Chief Land Registrar rendered the application fatally defective would be inviting this Honourable Court to believe the improbable.

2. 3.8Further given that the holder of the office changes from time to time, it would be impractical to name the office-holder at the time as the same could have changed since the issuing of the orders. Indeed, the holder of the office has changed between 2003 and now.”

I am of the same view as Justice Lenaola SC judge’s finding and I so hold.

Is The Alleged Contemnor Named? 28. The Chief Lands Registrar has been properly cited in the contempt application, it being the office that holds final responsibility and accountability over all Land Registrars within the Republic of Kenya.

29. The Chief Lands Registrar, is appointed by virtue of sections 12 and 13 of the Land Registration Act, 2012. Section 2 of the Land Registration Act defines a Registrar as follows:“Registrar" means the Chief Land Registrar, the Deputy Land Registrar, County Land Registrars and Land Registrars appointed under section 12 and 13;

30. It is not in doubt that the Registrar of Titles is an office that was created under the Registration of Titles Act, Cap. 281(repealed). By virtue of its repeal, any of these offices that were subsequently abolished were redeployed within the same service under the new Land Registration Act, 2012.

31. The Chief Lands Registrar was correctly cited in the contempt application dated 26th November 2021 as the office ultimately bears the responsibility of all registries and consequently all registrars under it.

32. This ground of the Preliminary objection fails and the same is disallowed.

Disposition: 33. The Notice of Preliminary Objection the 22nd day of March 2023 lacks merit.

Order:The Notice of Preliminary Objection dated the 22nd day of March 2023 is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF OCTOBER 2023J. CHIGITI (SC)JUDGE