[2021] KEELC 1407 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT NO. E132 OF 2021

WINGS OF LIFE GOSPEL CHURCH INTERNATIONAL TRUSTEES.....PLAINTIFF

VERSUS

HUSSEIN ADAN SOMO...........................................................................1ST DEFENDANT

NAIROBI CITY COUNTY........................................................................2ND DEFENDANT

MINISTRY OF LANDS AND PHYSICAL PLANNING.......................3RD DEFENDANT

DIRECTOR OF SURVEYS....................................................................4TH DEFENDANT

ATTORNEY GENERAL.........................................................................5TH DEFENDANT

RULING

On 23rd April, 2021, the court made the following orders on the plaintiff’s application dated 16th April, 2021;

1. That pending the hearing of the application inter-partes or further orders by the court, the 1st and 2nd defendants are restrained on a temporary basis from demolishing the plaintiff’s structures, evicting the plaintiff, selling, charging and/or interfering in any manner whatsoever with the plaintiff’s possession of all that parcel of land known as L.R No. 209/16780, I.R 211484 also referred to as Plot “B” Off Racecourse and General Waruinge Road(hereinafter referred to as “the suit property”). For the avoidance of doubt, possession of the suit property shall revert to and shall remain what it was prior to the alleged forceful entry into the property and eviction of the plaintiff therefrom on 13th and 14th April, 2021.

2. That until further orders by the court, there shall be a temporary inhibition inhibiting the registration of any other or further dealings with the suit property.

3. That the application shall be served for hearing on inter-partes on 28th April, 2021.

On 26th April, 2021, the 1st defendant filed an application dated 26th April, 2021 under certificate of urgency seeking a review, variation and/or setting aside of the said orders of 23rd April, 2021. The 1st defendant’s application was brought on among other grounds that the 1st defendant stood the risk of being cited for contempt of court if the said orders were not set aside and that the eviction and demolition that were restrained by the said orders had already taken place. In his affidavit in support of the application, the 1st defendant admitted that he was served with the orders made by this court on 23rd April, 2021 on 24th April, 2021. The court ordered that the 1st defendant’s said application be served upon the plaintiff for mention on 28th April, 2021 when the plaintiff’s application was scheduled to come up for hearing.

When the two applications came up on 28th April, 2021, the 1st defendant was not ready to proceed. The 1st defendant’s advocates had not served the 1st defendant’s application dated 26th April, 2021 upon the plaintiff. They had also not responded to the plaintiff’s application. The 1st defendant’s advocate Mr. Orenge called upon the court to interpret its orders of 23th April, 2021 since the orders were granted ex parte and the same required the reinstatement of the plaintiff into the suit property. On his part, the plaintiff’s advocate, Mr. Kahuthu claimed that the 1st defendant had defied the said court orders and as such the 1st defendant was not supposed to be heard. Mr. Orenge argued that the 1st defendant was in possession of the suit property and as such it was not fair for him to be removed from the property. The court fixed the plaintiff’s application dated 16th April, 2021 for hearing on 16th June, 2021 and declined the invitation from the 1st defendant to interpret the orders made on 23rd April, 2021. The said orders were extended.

When the plaintiff’s application came up for hearing on 16th June, 2021, the same did not proceed. The plaintiff’s advocate informed the court that the 1st defendant had continued with his defiance of the orders made on 23rd April, 2021 and as a result of that the plaintiff had filed an application dated 11th June, 2021 for contempt against the 1st defendant. The court directed that the said application for contempt be heard first. That is the application which is the subject of this ruling.

It its application dated 11th June, 2021, the plaintiff sought the following orders;

1. That the 1st defendant, Hussein Adan Somo and/or his agents be committed to prison/Civil jail for 6 months for contempt of the court’s orders given on 23rd April, 2021 and extended on 28th April, 2021.

2. That a warrant of arrest be issued to the Officer Commanding Kamukunji Police Station to arrest the 1st defendant and bring him before the court for sentencing.

3. That in the alternative, the court does order the attachment of the 1st defendant’s properties and for that purpose the 1st defendant does provide the court with the title documents for his properties within 7 days of the orders and/or the 1st defendant does deposit Kshs. 50,000,000/- with the plaintiff forthwith.

4. That the court does issue any other order deemed fit in the circumstances.

5. That the 1st defendant should not be heard until he purges his contempt.

6. That the 1st defendant does bear the costs of the application.

The plaintiff’s application that was supported by the affidavit of Gerishon K. Njoroge was brought on the grounds that the orders made herein on 23rd April, 2021 and extended on 28th April, 2021 were extracted and served upon the 1st defendant and that the 1st defendant had refused to comply with the same. The plaintiff averred that the 1st defendant was aware of the said orders and even filed an application in the Court of Appeal in Civil Appeal (Application) No. E241 of 2021, Nairobi seeking to stay the same which application was dismissed. The plaintiff annexed to its affidavit in support of the application among others; copies of the orders given on 23rd April, 2021 and 28th April, 2021 and affidavits of service thereof upon the 1st defendant. The plaintiff also annexed a copy of the order that was made by the Court of Appeal on 8th June, 2021. The plaintiff averred that the 1st defendant had refused to comply with the court order in that he had refused to hand over possession of the suit property to the plaintiff. The plaintiff averred that the 1st defendant had stationed two (2) security guards on the suit property.

The 1st defendant opposed the application through a Notice of Preliminary Objection dated 28th June, 2021 and a replying sworn on 14th September, 2021. In his Notice of Preliminary Objection, the 1st defendant contended that the plaintiff does not have capacity to institute this suit under the Societies Act, Chapter 108 Laws of Kenya. The 1st defendant contended further that the application is fatally defective, bad in law and amounts to an abuse of the court process. In his affidavit, the 1st defendant stated that he was given possession of the suit property by the 2nd defendant on 13th March, 2021, he fenced the same and erected a gate thereon. The 1st defendant stated that the court orders in question were served upon him but the same had been overtaken by events. The 1st defendant stated that he had not commenced any construction on the suit property because he respected the said court orders. The 1st defendant stated that he had not blocked the plaintiff from accessing the suit property.

The plaintiff filed a supplementary affidavit sworn by Gerishon K. Njoroge on 17th September, 2021 in which he stated that the 1st defendant had continued with his defiance of the court by completely demolishing the church building and erecting a stone wall fence around the suit property. The plaintiff averred that the court order referred to in the 1st defendant’s affidavit concerned a neighbouring plot and had nothing to do with the suit property. The plaintiff averred that the 1st defendant was not ready to comply with the orders of the court.

The application was heard on 29th September, 2021. In his submissions, Mr. Kahuthu for plaintiff reiterated the contents of the affidavits filed in support of the application. Mr.Kahuthu submitted that the 1st defendant had not denied the existence of the order he is accused of disobeying and service of the same upon him. Mr.Kahuthu submitted that the plaintiff had placed evidence before the court showing the status of the suit property after the 1st defendant took possession of the same. He urged the court to grant the orders sought.

In his submissions in reply, Mr. Orenge for the 1st defendant reiterated the contents of the 1st defendant’s replying affidavit. Mr. Orenge submitted that as at the time the 1st defendant was served with the court order; he had already put up a fence around the suit property. Mr. Orenge submitted that the 1st defendant had not refused to restore the plaintiff back to the suit property. He submitted that the 1st defendant had not denied the plaintiff access to the suit property. In a rejoinder, Mr. Kahuthu submitted that the plaintiff had attempted to go back to the suit property and was denied access by the 1st defendant.

Determination:

I have considered the plaintiff’s application together with the affidavits filed in support thereof. I have also considered the affidavit and Notice of Preliminary Objection filed by the 1st defendant in opposition to the application. Finally, I have considered the submissions by the advocates for the parties. The main issues for determination in the application before me is whether the plaintiff has established that the 1st defendant breached the orders issued herein on 23rd April, 2021 and extended on 28th April, 2021 and whether the plaintiff is entitled to the reliefs sought in the application.

In Hardkinson v Hardkinson [1952] ALL ER 567, it was held that:

“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such order would as a general rule result in the person disobeying being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt.”

In Mutitika vBaharini Farm Ltd [1985] KLR 227 it was held that:

i. A person who knowing of an injunction, or an order of stay, willfully does something, or causes others to do something, to break the injunction, or interfere with the stay, is liable to be committed for contempt of court as such a person has by his conduct obstructed justice.

ii. The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt.

iii. The principle must be borne in mind that the jurisdiction to commit for contempt should be carefully exercised with great reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor.

In Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others (2018) eKLR the court set out the law on contempt as follows:

“It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court in Republic v. Ahmad Abolfathi Mohammed & Another (supra). Secondly, as this Court emphasized in Jihan Freighters Ltd v. Hardware & General Stores Ltd and in A.B. & Another v. R. B. [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v. Baharini Farm (supra) and Republic v. Ahmad Abolfathi Mohammed & Another (supra).”

It is on the foregoing principles that the plaintiff’s application falls for consideration. The plaintiff has claimed that the 1st defendant committed an act of contempt by refusing to vacate the suit property and handover possession of the same to the plaintiff in accordance with the orders made herein on 23rd April, 2021 that was extended on 28th April, 2021. In response to this allegation, the 1st defendant has claimed that the suit property was handed over to him by the 2nd defendant after the 2nd defendant had evicted the plaintiff therefrom and that upon taking possession, he put up a perimeter wall around the suit property and installed a gate. The 1st defendant has contended that when the order of 23rd April, 2021 was served upon him, he had already constructed the said perimeter wall. The 1st defendant has contended that he has not refused to grant the plaintiff access to the suit property.

From the conduct of the 1st defendant and the evidence before the court, I am satisfied that the 1st defendant is in contempt of the orders made herein on 23rd April, 2021. The 1st defendant was aware that he was required pursuant to the said court order to hand over possession of the suit property to the plaintiff. The 1st defendant came before this court to set aside the said order and the court declined to stay the same ex parte. In the application the 1st defendant stated that if the orders of 23rd April, 2021 were not varied, he risked being cited for contempt of court. The 1st defendant’s application for the variation of the said order is still pending. The 1st defendant then went to the Court of Appeal to have the order stayed. The Court of Appeal dismissed his application. The 1st defendant has admitted that he has fenced the suit property with a stone wall and installed agate. The 1st defendant has not denied that he has put guards on the suit property to keep off any person trying to access the same. On 28th April, 2021 when the parties appeared before this court, the plaintiff’s advocate informed the court that the 1st defendant had defied the court order of 23rd April, 2021. As at this date, the contempt of court application had not been filed. The 1st defendant’s advocate did not deny the claim by the plaintiff’ advocate.

The record of the court shows that Mr. Orenge advocate for the 1st defendant told the court on that day that the 1st defendant was in possession of the suit property and he urged the court to maintain that status quo. In fact, Mr. Orenge argued that it was unfair to remove the 1st defendant from the suit property. The 1st defendant has not told the court when he had a change of heart and agreed to surrender possession of the suit property to the plaintiff. As a show of good faith even after the contempt application was brought, nothing stopped the 1st defendant’s advocate from informing the court that the 1st defendant was ready and willing to surrender the suit property to the plaintiff and that it was not necessary to argue the application.

Due to the foregoing, I am satisfied that the plaintiff has proved the act of contempt alleged against the 1st defendant. The orders given on 23rd April, 2021 were clear in their terms. The 1st defendant was prevented from interfering with the plaintiff’s possession of the suit property. The court made it clear that in the event that possession of the suit property had been taken from the plaintiff through forceful eviction, possession had to revert to what it was prior to the eviction of the plaintiff from the suit property. It is not disputed that the plaintiff was forcefully evicted from the suit property. It is also not disputed that the 1st defendant took possession of the suit property thereafter. It is not disputed that the 1st defendant was served with the court order aforesaid that required that possession be restored to the plaintiff. It is also not disputed that the plaintiff has not got back possession of the suit property. I am persuaded that the 1st defendant in flagrant disobedience of the order issued herein on 23rd April, 2021 has denied the plaintiff access to the suit property by putting up a perimeter wall fence around the suit property, installing a gate and posting guards to keep off the plaintiff from the property.

In the final analysis, I hereby make the following orders on the plaintiff’s application dated 11th June, 2021;

1. I find the 1st defendant, Hussein Adan Somo in contempt of the orders made on 23rd April, 2021 and extended on 28th April, 2021.

2. The 1st defendant is granted seven (7) days from the date hereof within which to purge his contempt by granting the plaintiff access and possession of the suit property on a temporary basis pending the hearing of the plaintiff’s and the 1st defendant’s applications dated 16th April, 2021 and 26th April, 2021 respectively pending herein.

3. The 1st defendant shall appear before this court on a date to be fixed to address the court in mitigation before a sentence is passed against him.

4. The plaintiff shall have the costs of the application.

DELIVERED AND DATED AT NAIROBI THIS 21ST DAY OF OCTOBER, 2021

S OKONG'O

JUDGE

Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:

Mr. Kahuthu for the Plaintiff

Mr. Orenge for the 1st defendant

Ms. Mogusu for the 2nd defendant

N/A for the 3rd, 4th, and 5th defendants

Ms. C. Nyokabi-Court Assistant