[2020] KEHC 844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC. APPLICATION 43 OF 2002

EX PARTE: JOEL KENDAGOR……….......…........APPLICANT/RESPONDENT

VERSUS

UASIN GISHU LAND DISPUTES TRIBUNAL…......................….RESPONDENT

AND

KIPLAGAT KENDAGOR

KIMELIL KENDAGOR CHELAL

SHADRACK KIGEN KENDAGOR......INTERESTED PARTIES/RESPONDENTS

AND

EX PARTE: JOEL KENDAGOR............................................................APPLICANT

RULING

BRIEF FACTS

1. The application before this court is the ex parte applicant’s notice of motion dated 5th march 2020 seeking orders that;

a. - spent

b. The ex parte applicant be granted leave to institute contempt proceedings against the interested parties therein.

c. That upon granting the ex parte applicant leave this court do issue an order directing that the interested parties be cited for contempt of orders of this court made on 1st February 2002.

d. That an order issues directing that the interested parties be arrested and detained in prison for six months for disobeying the orders of the court made on 1st February 2002 and issued on 5th march 2002.

e. Costs of this application be provided for.

2. The application is supported by the affidavit of Joel Kendagor sworn on 11th March 2020. The 2nd and 3rd respondents have in response filed their respective replying affidavits, basically contending that there has been no disobedience of the court orders, and in any event, the order was not served on them. They still contest the claim to ownership of the parcel, maintaining that they contributed towards its purchase, they have constructed houses thereon and lived there for many years and even buried their loved ones there, long before the institution of this suit. They contend that they filed the dispute before the Uasin Gishu Land disputes Tribunal, and the finding was adopted as judgement of the magistrate’s court vide Award No 15 of 2001 and which directed that parcel No PLATEU/PLATEU BLOCK 2 (RUIYOBEI) be subdivided between the four sons (including the applicant) of BARMIIBEN CHELAL. They heap blame on the applicant, stating that he filed the present judicial review proceedings, obtained orders for stay but never set it down for hearing, and it was eventually dismissed for want of prosecution. Consequently, the subdivision was effected in accordance with the decree. By the time the proceedings were reinstated including the order for maintaining status quo, the interested parties had physically developed their respective portions, but beyond that no further adverse action has been taken in terms of transfer, registration or processing of the title.

EX PARTE APPLICANT’S CASE

3. The ex parte applicant filed submissions on 22nd September 2020. He instituted the instant judicial review cause seeking orders of;

Certiorari to quash the decision of the Uasin Gishu Land Disputes Tribunal in case no. 67 of 2000 whose effect was that the parcel of land No.Plateau/Plateau East Block 2 (Ruiyobei) 224be subdivided and that the interested parties be given 36. 3 acres of the said parcel of land.

Prohibition to prohibit the chief magistrate in Eldoret from drawing a decree in terms of the award of the Uasin Gishu Land Disputes Tribunal and to prohibit the District Land Registrar from registering the decree and transfer in respect of the tribunal’s award.

4. The ex parte applicant was granted leave to institute the instant proceedings which operated as stay of the whole proceedings of the award made by the tribunal. The order to this effect was made on 1st February 2002 and issued on 5th March 2002.

The judicial review was dismissed for want of prosecution but was reinstated on 9th December 2019 and the orders of stay made on 1st February 2002 were reinstated. The applicant has moved this court seeking to have interested parties cited for contempt of court orders of this court made on 1st February 2002 as the interested parties have been ploughing and dealing adversely with the parcel of land to the detriment of the applicant on the basis that they are the owners of the parcel of land pursuant to the decision of the tribunal whereas the decision of the tribunal is stayed.

The applicant cited the case of Rophina Imo Amai v Lawrence Isogoi Karani (2020) eKLR where the threshold of contempt was set out. It must be proved that;

i. He was aware of/had knowledge of the order

ii. The order must be clear and precise so as to leave no doubt on what a party was supposed to do/refrain from doing.

iii. There has been proof of disobedience from the alleged order.

5. The ex parte applicant contends that he has proved these three tenets listed above, pointing out that the interested parties were aware of the order made on 1/2/2002 and issued on 5/3/2002.

The interested parties have been represented by various counsel during the subsistence of the case. They have annexed the said order in various applications filed before the court. One such application is the application dated 15/9/2004 which sought to reconstruct the court file in this matter when the same had been misplaced. It is argued that having been fully represented by counsels during the subsistence of the judicial review cause herein, the parties cannot allege that they were not aware of the orders made on 1/2/2002 and issued on 5/3/2002. That the very reason as to why the interested parties have not proceeded to have the various portions of the parcel of land registered in their names is because of the order made on 1/2/2002.

6. The interested parties’ assertions that they were not personally served with the order made on 1/2/2002 is contested as being baseless. He relied on the case of Shimmers Plaza Ltd v NBK (2015) eKLR where it was held that the knowledge of a court order suffices to prove service and dispenses with personal service for the purposes of contempt proceedings. The interested parties were aware of the orders made and as such the first tenet has been proven.

The order forming the subject of the instant application is annexed to the application dated 5/3/2020 as JK2 which stated that. When the instant judicial review cause was dismissed for want of prosecution, the ex parte applicant filed an application to reinstate the judicial review cause. The same was reinstated vide the ruling dated 9/12/2019. One of the reasons the cause was reinstated was because the ex parte applicant was not served with the application seeking to dismiss the judicial review for want of prosecution.

7. On reinstatement the stay orders were revived, and it is pointed out that the interested parties have not denied ploughing the land or adversely dealing with the parcel of land on basis of the award of the tribunal claiming they are the owners of the land.

The judicial review cause having been reinstated, the stay orders that were in force were given a new lease of life and therefore, anything done in contravention of the same as the interested parties herein have done is punishable for contempt.

8. Reference is made to the annexed photographs to the application dated 5th March 2020 (refer to annexure JK4 of the application) to argue that the same demonstrate that the parcel of land was ploughed to his detriment. Further, that the interested parties have not denied ploughing the parcel of land, and claiming ownership pursuant to the decision of the tribunal which was stayed, which act is punishable for contempt.

Whereas the interested parties are claiming that the parcel of land subject to the instant judicial review cause is family land and was registered fraudulently, they have not filed a suit in the Environment and Land Court claiming ownership rights over the said parcel of land.

The applicant has laid bare the contemptuous acts of the interested parties herein having annexed photographs of the parcel of land adversely dealt with and or plough to the detriment of the ex parte applicant.

The respondents should be cited for contempt of court.

2ND AND 3RD RESPONDENTS’ CASE

9. The respondents submitted that they have not been served with any order alleged to have been disobeyed and there is no affidavit of service on record in compliance with order 5 if the Civil Procedure Rules 2010 and in absence of persona service the instant application as presented must fail. They relied on the case of Nyamogo v Kenya Posts & Telecommunications Corporation (1990-1994) EA 464.

The order that was made on 1st February 2002 purportedly served upon the 2nd and 3rd respondents cannot be a basis for finding the 2nd and 3rd respondents guilty of contempt as it did not bear the mandatory penal notice informing them or any other person to whom the copy of the order was served that if he or she disobeys the order is liable to be punished in case he disobeys the order. He cited the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others CA No. 233 of 2007.

The applicant has not presented before this honourable court any substantive proof showing the 2nd and 3rd respondents committed the acts of contempt complained of. There are no interim orders presently in force and as such, the 2nd and 3rd respondents cannot be said to have disobeyed any court order so as to be cited for contempt.

10. The depositions made in paragraph 2 of the supporting affidavit are misleading since the parcel the applicant claims to be his is family land which was fraudulently registered in the applicants’ name knowing that the interested parties contributed monies towards the purchase of the suit land and the said parcel is where the interested parties have been living for many years and built their houses, buried loved ones even before the institution of the suit herein.

11. The applicant was granted stay and lost interest in the suit and the application was dismissed for want of prosecution and at that point there was stay in place. The respondent followed the law after the judicial review application was dismissed and caused the suit land to be subdivided in accordance with the decree in Eldoret CMCC No. 15 of 2001; the one that adopted the tribunal decision as an order; which information was brought to the knowledge of this honourable court on 30th July 2019 before the hearing of the applicant’s application for reinstatement of the judicial review application herein when this honourable court directed that status quo be maintained to the extent that no further adverse action shall be taken in terms of property including transfer, registration and processing of title. The application cannot stand as the orders made on 1/2/2002 were ambiguous and contradicted with the order issued by this honourable court on 30/07/2019.

Before the Judicial Review application was reinstated on 9th December 2010, the respondents had extensively developed their respective portions and that there are permanent structures on the parties hereto respective portions which belong to the respondents and the same were erected before the suit herein was commenced and the same has been the status quo on the ground for many years.

12. The applicant has not met the conditions enumerated in the case if Ochino & Others vs Okombo & 4 others (1989) KLR and has not demonstrated that the 2nd and 3rd respondents are in contempt. It is also trite law that the standard of proof in contempt is higher than that of civil cases but lower than the standard of beyond reasonable doubt as required in criminal proceedings. They cited the case of Gatharia K Mutikika v Baharini Farm Limited.

The instant application should be dismissed with costs.

ISSUES FOR DETERMINATION

1. Whether the interested parties should be cited for contempt

WHETHER THE INTERESTED PARTIES SHOULD BE CITED FOR CONTEMPT OF COURT

The crux of the application is that the applicant seeks orders for the interested parties should be cited for contempt of court.

In the case of OCHINO AND ANOTHER VS OKOMBO AND 4 OTHERS [1989] KLRthe Court of Appeal R. Gachuhi, Masime and Kwach JJ. A held Inter alia that:

1. “As a general rule, no order of court requiring a person to do or to abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.

2. The copy of the order served must be endorsed with a notice informing the person on whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.

3. The court will only punish as contempt a breach of injunction if it is satisfied that the terms of the injunction are clear unambiguous.

4. The defendants had proper notice of the terms and the breach of the injunction must be proved beyond reasonable doubt.

5. The proper procedure for bringing the application for contempt.

In order to determine whether the respondents should be cited for contempt the court must determine whether the above conditions were met.

a. Whether the order was served personally on the respondents

13. The applicants contend that knowledge of the existence of the order is enough as per the case of Shimmers Plaza Ltd vs. NBK (2015) eKLR where the court held;

Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.

The respondents continued to fix the matter for hearing on various dates. I find that they were aware of the existence of the said order despite the claim that they were not served in person. Knowledge of the order suffices.

b. Whether the copy of the order served was endorsed with a penal notice

The applicant annexed a copy of the order as JK-2. A perusal of the order reveals that the order did not contain a penal notice informing the person on whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.

This condition has not been met.

In Court of Appeal Civil Appeal, No 95/1988 Mwangi H C Wang’ondu v Nairobi City Commission (UR)confirmed the mandatory nature of the requirement of endorsement of notice of penal consequence on the order in the following words:

In the present case, according to the affidavit of the appellant sworn on 26th January, 1988, in support of his application, the order alleged to have been disobeyed by the respondent was served on the respondent on 31st August, 1987, and a copy of that order which was annexed to the affidavit did not carry a notice of the penal consequences of disobedience as required by the Rules. It is clear from this that the appellant did not comply with the mandatory provisions of section 5(1) of the Judicature Act with the result that his application was incompetent. It must follow that there was no valid application for contempt of court before the judge.”

14. In the absence of the penal notice, there can be no valid application for contempt of court orders. In the premises the application fails as it does not meet the required threshold for the court to find the applicant in contempt of the orders of the court, and is dismissed with costs.

E-Delivered and dated his 8th day of December 2020 at Eldoret

H.A. OMONDI

JUDGE

Mr Chesoni for Applicant

Mr Kagunza for Respondent