[2024] KEELC 13970 (KLR)

Republic v Registrar & another; Criticos & another (Exparte Applicants); Seva & 446 others (Interested Party) (Environment & Land Case E011 of 2023) [2024] KEELC 13970 (KLR) (13 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13970 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E011 of 2023

JO Mboya, J

December 13, 2024

Between

Republic

Applicant

and

Chief Land Registrar

1st Respondent

Attorney General

2nd Respondent

and

Hon Basil Criticos

Exparte Applicant

HE Mama Ngina Kenyatta

Exparte Applicant

and

Juma Seva & 446 others

Interested Party

Ruling

Introduction And Background: 1. The 1st Ex-parte Applicant [hereinafter referred to as the Applicant] has approached the court vide Notice of Motion application dated the 18th June 2024, brought pursuant to the provisions of inter-alia Article 159 of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 5(1) of the Judicature Act, Order 52 Rule 3 of the Rules of the Supreme Court of England, and in respect of which same [Applicant] has sought for the following reliefs [verbatim];i.This Application be certified urgent and service thereof be dispensed with in the first instance.ii.This Honourable Court do find the 1st Respondent in contempt of court for disobedience of the Judgment dated 4th March 2024 and the Decree issued herein on 26th March 2024. iii.Upon grant of prayer 2 above, this Honourable Court do issue an Order that the 1s Respondent be committed to Civil Jail for a period of 6 months or for such other period as this Honourable Court may deem fit and just.iv.The 1st Respondent do meet the costs of this application.

2. The subject application is anchored/premised on various grounds which have been highlighted at the foot of the application. Furthermore, the application beforehand is supported by the Affidavit sworn by one Hon Basil Criticos [Deponent]; and which affidavit has been sworn on even date, namely, the 18th day of June 2024.

3. Additionally, the subject application is supported by a further affidavit sworn by the said Hon. Basil Criticos and which further affidavit is sworn on the 23rd September 2024. Besides, the deponent has attached assorted documents which have been referenced as annexure BC1.

4. Upon being served with the subject application, the Respondents filed grounds of opposition dated the 12th July 2024; Replying affidavit sworn by Nyandoro David Nyambaso on the 23rd July 2024; Further affidavit sworn by Nyandoro David Nyambaso sworn on the 25th September 2024; and a Replying affidavit sworn by Kennedy N Githunguri on the 6th September 2024, respectively.

5. Suffice it to point out that the subject application came up for hearing on the 31st July 2024, whereupon the advocates for the parties intimated to the Court that the parties were engaged in negotiations in an endeavor to settle the matter. In this regard, the court proceeded to and granted the latitude to the engage in the negotiations and to revert with outcome thereof.

6. Additionally, the subject application came up for mention on the 28th October 2024. For good measure, the advocates for the parties intimated to the court that the parties had not reached and/or arrived at a settlement. In this regard, the advocates for the parties covenanted to canvass and dispose of the application by way of written submissions.

7. The Applicant herein filed written submissions dated the 12th October 2024, whereas the Respondent filed their written submissions dated the 29th November 2024. The two [2] sets of written submissions form part of the record of the court.

Parties’ Submissions a. Applicants’ Submissions: 8. The Applicant filed written submissions dated the 24th October 2024 and wherein the Applicants have adopted the grounds contained at the foot of the application. Additionally, the Applicants have highlighted and reiterated the averments contained in the supporting affidavit as well as the further affidavit, respectively.

9. Furthermore, learned counsel for the Applicants has thereafter canvassed and highlighted two [2] salient issues for consideration by the court. Firstly, learned counsel for the Applicants has submitted that this court proceeded to and rendered a judgment on the 4th March 2024. In addition, it was submitted that pursuant to the judgment under reference, the 1st Respondent was obliged to process, execute and issue the certificate of title in respect of the suit property to the Applicant.

10. Nevertheless, it has been contended that despite the clear terms of the judgment rendered on the 4th March 2024, the 1st Respondent has failed, neglected and/or refused to process and issue the certificate of title in favor of the Applicant.

11. On the other hand, it has been contended that the judgment of the court was delivered in the presence of learned counsel for the Respondents. In this regard, it has therefore been submitted that the Respondents herein were privy to and knowledgeable of the terms of the judgment.

12. Other than the foregoing, learned counsel for the Applicant has also submitted that following the delivery of the judgment of the court same [learned counsel] generated a letter dated the 11th March 2024 and wherein the 1st Respondent was reminded of the terms of the judgment and the necessity to process and issue the certificate of title in respect of the suit property.

13. Be that as it may, learned counsel for the Applicant has submitted that the 1st Respondent has remained adamant in his failure and neglect to process and issue the certificate of title. In this regard, it has been contended that the failure and neglect by the 1st Respondent to process and issue the certificate of title in accordance with the judgment of the court constitutes contempt/willful disobedience of lawful court orders.

14. In a nutshell, learned counsel for the Applicants has therefore submitted that the 1st Respondent is guilty of contempt/willful disobedience of lawful court orders and to this end, learned counsel for the Applicant has invited the court to cite and punish the 1st Respondent.

15. To buttress the foregoing submissions, learned counsel for the Applicant has cited and referenced inter-alia the case of Samuel M. N Mweru & Others v national Land Commission & 2 Others [2020]eKLR and Shemers Plaza Ltd v National Bank of Kenya Ltd [2015]eKLR.

16. Secondly, learned counsel for the Applicant has submitted that upon being served with the subject application, the 1st Respondent has filed two replying affidavits and in respect of which same [1st Respondent] has contended inter-alia that the certificate of title in respect of the suit property was processed and released to one Johnathan Kiraga. However, it has been contended that the averments that the certificate of title was processed and collected by the said Johnathan on the 8th November 2022 is an afterthought and same is intended to defeat the terms of the judgment of the court.

17. Furthermore, learned counsel for the Applicant has submitted that the issues that are being raised by and on behalf of the 1st Respondent including the averments that the certificate of title had been processed and released long before the judgment, are new issues which were never canvassed before the court. To this end, learned counsel for the Applicant has posited that the said new issues have therefore been made in bad faith and constitute a deliberate ploy to circumvent the judgment of the court.

18. Arising from the foregoing, learned counsel for the Applicant has implored the court to find and hold that the application beforehand is meritorious. In this regard, the court has been invited to proceed and cite the 1st Respondent for contempt/willful disobedience of the judgment of the court.

b. Respondents Submissions: 19. The Respondents filed written submissions dated the 19th November 2024 and wherein the Respondents have reiterated the contents of the various affidavits filed on behalf of the Respondents. For coherence, the Respondents have highlighted the averments at the foot of the Replying affidavit sworn by Nyandoro David Nyambaso on the 3rd July 2024; Further affidavit sworn by Nyandoro David Nyambaso on the 25th September 2024 and the Replying affidavit sworn by Kennedy N Githunguri on the 6th September 2024.

20. Additionally, learned counsel for the Respondents has ventured forward and highlighted two [2] salient issues for consideration and determination by the court. Firstly, learned counsel for the Respondents has submitted that though the court issued a judgment on the 4th March 2024 and wherein the 1st Respondent was directed to process and issue the certificate of title, it has since transpired that the certificate of title under reference was processed and released to one Johnathan Kiraga on behalf of the 1st Applicant.

21. To underscore the submissions that the certificate of title in respect of the suit property was processed and released to and in favour of the Johnathan Kiraga, learned counsel for the Respondents has invited the court to take cognizance of the contents of paragraph 18 of the Replying affidavit sworn by Nyandoro David Nyambaso on the 3rd July 2024. Furthermore, learned counsel has also cited and referenced annexure ND6 annexed thereto.

22. Arising from the foregoing, learned counsel for the Respondents has therefore submitted that the certificate of title which underpins the judgment of the court stood processed and issued. In this regard, it has therefore been contended that the Respondents are not in contempt of the judgment of the court.

23. Secondly, learned counsel for the Respondents has submitted that contempt proceedings are geared towards protecting the integrity and dignity of the court. Nevertheless, it has been submitted that where the act complained of has been undertaken and/ or complied with, the court ought not to cite and punish the contemnor.

24. To underscore, the submissions that the contemnor ought not to be punished where the acts complained of has been complied with, learned counsel for the Respondents has cited and referenced the holding in the case of Hadkinson v Hadkinson [1952] ALL ER 567; A. B & Another v R. B [2016] KECA 597 KLR and Akber Abdula Kassam Essmail v Equip Agency ltd & 4 Others [2014]eKLR, respectively.

25. Other than the foregoing, learned counsel for the Respondents has submitted that whereas the court is seized and possessed of the requisite powers to cite and punish for contempt, it ought not to be lost on the court that the power to cite and punish for contempt ought to be exercised with necessary caution and greatest reluctance.

26. In any event, it has been submitted that the power to cite and punish for contempt ought to be exercised as a last resort taking into account that the punishment attendant thereto may entail or culminate into loss of liberty of a citizen.

27. To underscore the foregoing submissions, learned counsel for the Respondent has cited and referenced the holding in the case of Reclemence, Clemence v Erlanga [1877] 46 L. J CH 383 wherein the court considered the scope and extent of the jurisdiction attendant to committal for contempt.

28. Flowing from the foregoing submissions, learned counsel for the Respondents has invited the court to find and hold that the 1st Respondent has duly complied with and performed the directives at the foot of the judgment rendered on the 4th march 2024. Instructively, it has been contended that the subject certificate of title was indeed processed and released to the 1st Applicant representative on the 8th November 2022.

29. In the premises, the court has been implored to find and hold that the applicant has not met or satisfied the threshold to warrant the citation and punishment of the 1st Respondent.

Issues For Determination: 30. Having reviewed the notice of motion application dated the 18th June 2024 and the responses thereto and upon consideration of the written submissions filed on behalf of the respective parties, the following issues do crystalize [emerge] and are thus worthy of etermination;i.Whether the Respondent and in particular the 1st Respondent has committed acts of contempt willful disobedience of the court.ii.Whether the Applicant has proved the averments of contempt/willful disobedience to the requisite standards or otherwise.

Analysis And Determination: Issue Number 1 Whether the Respondent and in particular the 1st Respondent has committed acts of contempt willful disobedience of the court. 31. It is common ground that the ex-parte Applicants filed judicial review proceedings and wherein same [Applicants] sought for various orders, inter-alia an order of mandamus to compel the 1st Respondent to process issue and release the certificate of title in respect of L.R No. 10287/7 [hereinafter referred to as the suit property].

32. Furthermore, there is no dispute that the judicial review proceedings which were filed by and on behalf of the Applicants herein was heard and disposed of vide judgment rendered on the 4th March 2024. Instructively, the court found merit in the application and thereafter issued an order of mandamus.

33. Pursuant to the judgment rendered on the 4th March 2024, the court ordered and directed the 1st Respondent to process issue and release to the Applicants the certificate of title in respect of the suit property within 30 days of the date of the judgment.

34. Suffice it to underscore that the judgment of the court which was rendered on the 4th march 2024 remains in situ. For good measure, the judgment under reference has neither been impugned nor set aside.

35. Be that as it may, the 1st Respondent has filed a replying affidavit sworn on the 3rd July 2024 and wherein the 1st Respondent has raised a plethora of issues. The contents of paragraphs 18, 19, 20 and 21 of the said replying affidavit are pertinent.

36. To this end, it is apposite to reproduce the contents of the said paragraphs. Same are reproduced as hereunder;18. THAT as per the booking application day book No. 1409 form retrieved from the Deed File the original title and transfer that were presented for registration on 18t October, 2022 were processed and dispatched to Jonathan Kiraga of ID No. 9877233 byLinett Kimani a Land Registrar who has confirmed having handled and dispatched the transactions. (Annexed herein and marked 'NDN 6' is a copy of the application for registration day book No. 1409 of 18th October, 2022).19. THAT in the Judgment and Decree of the Court issued on 26th March,2024 the Honourable Court decreed as follows:-a)That an order of mandamus is hereby issued compelling the 1"Respondent to issue and release to the ex-parte applicants the original Certificate of Title to L.R. No. 10287/7 as the registered proprietors thereof in the performance of his statutory duties and obligations under the provisions of Section 26 and 30 of the Land Registration Act, 2012. b)That the 1" Respondent herein be and is hereby ordered and directed to process, execute and engross the Certificate of Title in respect of the suit property and thereafter to release the same to the ex-parte applicants within 30 days from the date thereof.20. THAT the 1s Respondent wishes to state that the Certificate of Title to L.R.No. 10287/7 that the Court decreed by an Order of mandamus be issued to the Ex-parte Applicants was already issued and the same was collected by Jonathan Kiraga of ID. No. 9877233 on behalf of Waler Kontos Advocates on 8th November, 2022. 21. THAT we wish to categorically state that Certificate of Title to L.R. No.10287/7 was already processed and duly issued to the Ex-parte Applicants and that the orders of the Court from our records have already been complied with even prior to the delivery of the Judgment on 4th March, 2024.

37. From the contents of paragraph 20 and 21 of the replying affidavits sworn on the 3rd July 2024 [details which have been reproduced herein before] what becomes apparent is the contention that the certificate of title under reference had been issued or is said to have been issued on the 8th November 2022.

38. On the other hand, upon being served with the replying affidavit under reference, the 1st Applicant herein filed a further affidavit sworn on the 23rd October 2024. Pertinently, the 1st Applicant has contended that the person who has been highlighted and referenced at the foot of the replying affidavit as Johnathan Kiraga was never his [1st Applicants] representative.

39. Most importantly, the 1st Applicant has contended that the averments touching on and concerning the fact that the certificate of title had been released to his [Applicant’s agent] are issued that were neither brought before the court nor were determined vide the judgment rendered on the 4th March 2024.

40. To be able to appreciate the contents of the further affidavit and the position taken by the 1st Applicant in response to the averment that the certificate of title had been processed and released, it is instructive to take cognizance of paragraph 6, 8 and 10 of the said further affidavit.

41. For ease of appreciation, it suffices to reproduce the contents of the named paragraphs. Same are reproduced as hereunder; 6. That in reply to the averments in the said Affidavit, my then lawyers,have not had an employee by the name Jonathan Kiraga to whom certificate of title was released to such an individual, it was not received by my then lawyers or by me and its whereabouts are unknown to me.

8. That I am informed by my advocates Walker Kontos,which information I believe to be accurate that the alleged form 1409 did not originate from their law firm, the same lacks the law firm's stamp and/or signature together with the date on the last section of the details of the applicant as compared to thestamp and signature on form 804 and 600. The said form did not originate from their law firm.

9. That the Chief Land Registrar is insincere with the court as no such issues were ever raised in the hearing of the main suit, and according to the Affidavit the purported rejection occurred on 28th March, 2024after the honorable court's judgement on 7th March, 2024.

42. Having reproduced and taken into account the various averments adverted to by the rival parties, it is now apposite to revert to the question of proof of contempt/willful disobedience by the Respondent.

43. To start with, it is trite and established that contempt of court is a quasi-criminal offense. Furthermore, it is also worthy to recall that being a quasi-criminal offense, the standard of proof attendant thereto is slightly higher than in an ordinary suit.

44. Other than the forthgoing, it is not lost on this court that the burden of proving the existence of contempt/willful disobedience of lawful court order is cast upon the claimant. To this end, the burden of proof laid on the shoulders of the Applicant.

45. I beg to state that from the totality of the evidence that has been placed before the court, there appears to be conflicting evidence as to whether the terms of the judgment of the court have been complied with and/or met. On one hand, the Applicant posits that there has been neglect and/or refusal on the part of the Respondents.

46. On the other hand, the 1st Respondent contends that the certificate of title in respect of the suit property was processed, issued and released to one Johnathan Kiraga, who is said to have been a representative of the 1st Applicant. Furthermore, it has been averred that the certificate of title in question was released on the 8th November 2022.

47. Arising from the foregoing, what comes out to the fore is a contention by the Respondents that the certificate of title in question was indeed processed and released before the delivery of the judgment. For good measure, if indeed, the certificate of title was processed and released, then it means that the judgment of the court herein has been rendered moot.

48. Be that as it may, it is important to underscore that by virtue of contempt being a qausi-criminal, it then means that where there is some shadow of doubt, the doubt out to be resolved in favor of the Respondent. To this end, I feal obligated to resolve the doubt in favor of the 1st Respondent.

49. Arising from the foregoing, and taking into account the averment that the certificate of title was processed and released on the 8th November 2022 [which averment] appears to ex-facie plausible, I come to the conclusion that the Applicant herein has neither discharged the burden of proof to demonstrate that the Respondents are guilty of contempt.

50. Suffice it to point out, that because of it nature, allegations touching on and concerning contempt/willful disobedience of court must not only be precisely pleaded and particularly stated but same must also be treated with great caution and circumspection.

51. To this end, I beg to adopt and cite the decision of the court of appeal in Akber Abdullah Kassam Esmail v Equip Agencies Ltd & 4 others [2014] eKLR, where the court cited and relied on the dictum in the case of In Re Clements, Clements V. Erlanger, (1877), 46 L. J. Ch. 383 where in it was stated thus;“It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject.”

52. In view of the foregoing, my answer to issue number one is to the effect that the Applicant herein has not proved the allegations of contempt/willful disobedience of the lawful court orders to the requisite standard. Suffice it to underscore, that like in criminal proceedings, the benefit of doubt is resolved in favour of the Respondent.

Issue Number 2: Whether the Applicant has proved the averments of contempt/willful disobedience to the requisite standards or otherwise. 53. Contempt proceedings are quasi-criminal in nature. To this end, it is a requirement in law that any claim touching on and concerning contempt/willful disobedience of lawful court orders be proved to a standard that is above the balance of probabilities, but not beyond reasonable doubt.

54. For the avoidance of doubt, the applicable standard has been referenced as the intermediate standard. Instructively, the standard is referenced as intermediate because it lies in between balance of probabilities and beyond reasonable doubt.

55. To underscore the standard of proof in matters touching on contempt/willful disobedience of lawful court orders, it suffices to reference the decision in the case of Mutitika v Baharini Farm Ltd[1985] eKLR, where the court stated thus;In England matters relating to contempt are now governed by the Contempt of Court Act, 1981. The courts, nevertheless take the view that where the liberty of the subject is, or might be, involved, the breach for which the alleged contemnor is cited must be precisely defined – see for instance Chiltern Districts Council v Keane, [1985] Law Society’s Gazette, 29th May page 1567.

56. The Supreme Court of Kenya has also highlighted the requisite standard applicable in matters pertaining to contempt. In the case of Republic v Ahmad Abolfathi Mohammed & Sayeed Mansour Mousavi (Criminal Application 2 of 2018) [2018] KESC 51 (KLR) (Crim) (23 April 2018) (Ruling), the court stated and observed as hereunder;(28)It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.”(29)The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order.

57. Taking into account the higher standard of proof in respect of contempt proceedings [details highlighted in the decisions [supra]], it is my finding and holding that the circumstances belying the instant matter do not lend it self to a finding of contempt.

58. Notwithstanding the foregoing, it is imperative to remind the Respondents that it is the obligation of each and everyone who knows of a court order to endeavor to comply with and or adhere thereto. For good measure, obedience to the law is a respecter of no one, irrespective of social, economic or political class.

59. To buttress the foregoing observation, it suffices to cite and reference the decision of the Court of Appeal in the case of Shimmers Plaza Limited v National Bank of Kenya Limited (Civil Appeal 33 of 2012) [2015] KECA 945 (KLR) (Civ) (18 February 2015) (Ruling), where the court held thus;We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said:-“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.

Conclusion: 60. Flowing from the analysis adverted to herein before, I hesitantly come to the conclusion that the applicant has not met or satisfied the requisite threshold to warrant a finding of contempt against the 1st Respondent.

61. Additionally and taking into account, the contention by the 1st Respondent that the certificate of title was processed, issued and released on the 8th November 2022, it becomes apposite that the Applicant herein puts in place the mechanism towards procuring a provisional certificate of title. To this end, it may be appropriate for the Applicant to consider the provisions of Section 33 of the Land Registration Act, 2012.

62. For coherence, the said provisions stipulate thus;Lost or destroyed certificates and registers33. (1)Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may apply to the Registrar for the issue of a duplicate certificate of title or certificate of lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the previous certificate of title or certificate of lease.(2)) The Registrar shall require a statutory declaration to be made by all the registered proprietors, and in the case of a company, the director, where property has been charged, the chargee that the certificate of title or a certificate of lease has been lost or destroyed.(3)If the Registrar is satisfied with the evidence proving the destruction or loss of the certificate of title or certificate of lease, and after the publication of such notice in the Gazette and in any two local newspapers of nationwide circulation, the Registrar may issue a duplicate certificate of title or certificate of lease upon the expiry of sixty days from the date of publication in the Gazette or circulation of such newspapers; whichever is first.(4)If a lost certificate of title or certificate of lease is found, it shall be delivered to the Registrar for cancellation.(5)The Registrar shall have powers to reconstruct any lost or destroyed land register after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette.

Final Disposition: 63. Flowing from the discourse [details highlighted in the body of the ruling] I come to the conclusion that the Applicant has not proved the allegation of contempt/willful disobedience on the part of the 1st Respondent.

64. In the premises, the final orders of the court are as hereunder;i.The application dated the 18th June 2024 be and is hereby dismissed.ii.Each party shall bear own costs of the proceedings taking into account the obtaining circumstances.

65. It is so ordered.

DATED, SIGNED AND DELIVERED ON THE 13THDAY OF DECEMBER 2024OGUTTU MBOYA,JUDGE.In the presence of:Benson – Court Assistant.Mr. Ochieng h/b for Mr. Charlse Agwara for the Applicant.Mr. Allan Kamau [Principal Litigation Counsel] for the Respondents.N/A for the 2nd Applicant.