[2023] KEHC 26964 (KLR)

Republic v Chief Lands Registrar; Kaptoror Holdings Limited (Exparte Applicant) (Miscellaneous Application 1411 of 2001) [2023] KEHC 26964 (KLR) (Crim) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26964 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Application 1411 of 2001

JM Chigiti, J

December 14, 2023

Between

Republic

Applicant

and

Chief Lands Registrar

Respondent

and

Kaptoror Holdings Limited

Exparte Applicant

Ruling

1. What is before this court is the application 26th day of November 2021 where in the applicant prays for Orders that1. …Spent2. …spent3. Thatthe 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 30 of July 2003. 4.Thatthe 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. Thatthe 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.

Background 2. On the 30th of July 2003 Hon. Justice D. M. Rimita issued the following orders:a.An Order of Mandamus is hereby issued directing and compelling the Registrar of Titles to Register the Transfer of Land document dated 2nd of June 2001 in respect of L.R.10394 Grant Number I.R. 17434/1 from Petrus Jacob De Jager to Kaptoror Holdings Limited Lodged as day book number 416 of 11th September 2001. b.An Order of Prohibition is hereby issued directing and prohibiting the Commissioner of Lands from interfering with the Registration of the Transfer of Land document dated 2nd of June 2001 in respect of L.R. 10394 Grant Number I.R. 17434/1 from Petrus Jacob De Jager to Kaptoror Holdings Limited Lodged as day book number 416 of 11th September 2001.

3. The order remains disobeyed.

The Applicants case: 4. The Applicant maintains that, the Registrar of Titles herein was personally served with the said order on 13th August 2003.

5. Via his letter dated 9th November 2018 he acknowledged that the transfer documents and the court order were presented to the Registrar of Titles on 13thAugust 2003. It is his case that the court order was available in the deed file however, the transfer documents were now not available due to misplacement.

6. The Chief Lands Registrar, is the statutory officer who has the custody of the requisite records and registration instruments, pertaining to inter-alia the suit property by dint of the provisions sections 9 and 10 of The Land Registration Act, 2012.

7. The Registrar of Titles was an active participant in Judicial Review Case No. 1411 of 2001 Republic V Chief Lands Registrar ex parte Kaptoror Holdings Limited and was in court when the ruling was delivered and order was given.

8. Reliance is placed in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR the Court of Appeal considered the following on knowledge of existence of a court order wherein the Honourable court stated that; -a.“Kenya’s growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings, for instance, Lenaola J in the case of Basil Criticos v Attorney General and 8 Others [2012] eKLR pronounced himself as follows:b.‘...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.”

9. The Registrar of Titles was indeed served and he acknowledged receipt of the court’s orders of 30th July, 2003 which remain flouted.

10. The registration have never been effected against the title from Petrus Jacob De Jager to Kaptoror Holdings Limited for reasons unbeknownst to the applicant.

11. The Chief Lands Registrar responded to the Ombudsman vide his letter dated 20th May 2019, wherein he acknowledged receipt of the transfer documents and that the same were not registered.

12. The Chief Lands Registrar proceeded to inform to the Ombudsman, that he would not comply with the order because doing so would lead to challenges by those who were not a party to the proceedings.

13. He elected to disregard court orders. JR 1411 of 2001 the High Court emphatically stated that the land was never repossessed by the government but instead remained with the De Jager family until its transfer to Kaptoror Holdings Limited.

14. Reliance is placed in The Scottish case of Stewart Robertson vs. Her Majesty’s Advocate, 2007 HCAC 63, Lord Justice Clerk stated that:a.“contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings”

15. The Respondents herein have willfully and intentionally defied orders of the court that were issued on 30th July, 2003.

The respondents’ case: 16. In responding to the Ex-parte Applicants’ application dated 26th November, 2021, the respondents filed a notice of preliminary objection. The Notice of preliminary objection was dismissed by this court on 10. 23.

Analysis and determination: 17. The issues that crystalize for determination are:a.Whether or not the Respondent is in contempt of the court order of 30 of July 2003. b.Whether or not the prayers sought should be granted.

18. The Black’s Law Dictionary Ninth Edition) defines contempt of court as follows: -“Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine for imprisonment”

19. Reliance is placed in the case of Teachers Service CommissionvKenya National Union of Teachers & 2 others (2013) eKLR where Ndolo J observed as follows:“The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the Judiciary or the court or even the personal ego of the presiding Judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law”

20. In its ruling of 17th day of October, 2023 this court made a finding that it has the Jurisdiction to Punish a contemnor for Contempt of Court.

21. That the Contemnor was Served.

22. 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 denes 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.

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

24. I am Satisfied that On 30th July,2003, this Honourable Court issued orders of mandamus compelling the registrar of titles to register the transfer of land documents dated 2nd June,2001 in respect of the suit property from Petrus Jacob De Jager to the applicant herein lodged as day book number 416 of 11thSeptember,2001 and further orders of prohibition directed at the Commissioner of Lands prohibiting him from interfering with the registration of the transfer of the land documents dated 2nd June,2001 in respect of the suit property.

25. The aforesaid Ruling was delivered in the presence of the Registrar of Titles and service of the Ruling and Orders of 30th July, 2003 was effected on the Registrar of Titles as by law required.

26. The Chief Land Registrar vide his letter dated 9th November 2018 wherein he acknowledged that the transfer documents and the court order were presented to the Registrar of Titles on 13thAugust 2003. Further, he categorically stated the court order was available in the deed file however, the transfer documents were now not available due to misplacement.

27. I'm satisfied that the Chief Land Registrar is aware of the order through the said correspondence.

28. Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR the Court of Appeal considered the following on knowledge of existence of a court order wherein the Honourable court stated that;-a.“Kenya’s growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings, for instance, Lenaola J in the case of Basil Criticos v Attorney General and 8 Others [2012]eKLR pronounced himself as follows:b.‘..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.”

29. Court of Appeal of Kenya, Fred Matiang’i, the Cabinet Secretary Ministry of Interior and Coordination of National Government v. Miguna & others [2018] eKLR:“Courts must not look the other way, while Public and State Officers ride roughshod over constitutionalism and the rule of law.When Courts issue orders, they do not do so as suggestions or pleas, to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for a Party, be he high or low, weak or mighty, and quite regardless of standing in Society, to decide whether or not to obey, to choose which to obey and which to ignore, and to negotiate the manner of compliance.’’

Disposition: 30. The applicant has proven his case.

31. The Applicant is found guilty and in contempt of the order issued on 30th July 2003.

Order:1. The Chief Lands Registrar is convicted for contempt of the ruling and order dated and delivered on 30 July 2003. 2.The Chief Lands Registrar shall attend open court in person on 22nd January, 2024 at 10am for mitigation and sentencing.3. Costs to the applicant.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. JOHN CHIGITI (SC)JUDGE