[2018] KEELC 3613 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELC CASE NO. 215 OF 2013

ZACHARY MAINA MUNYUA..............PLAINTIFFS/APPLICANT

-VERSUS-

NANCY WAMUYU MUNYUA...............................1ST DEFENDANT

TERESA WAKANYI MUGO.................................2ND DEFENDANT

BEATRICE WAIRIMU MUNYUA........................3RD DEFENDANT

CATHERINE WANJURI MUNYUA.....................4TH DEFENDANT

DAMARIS WANJIKU MUNYUA..........................5TH DEFENDANT

RULING

1. The notice of motion dated 2nd September, 2016 inter alia seeks the following orders;

1. That a custodial sentence be meted on the 1st respondent in accordance with the provisions of the Civil Procedure Act Cap 21, Laws of Kenya until the main suit is heard and determined so as to restrain her from further acting in contempt of court.

2. That the same defendant be condemned for contravening the sub-judice rule by discussing matters before this court with the Chief of Gathehu Location, Mathira Sub-county, Nyeri county.

3. That she be condemned for contravening the same rule by organizing an illegal meeting of all members of our family which was scheduled for the 25th July, 2016 in the Chief’s office to discuss matters before this court.

4. That she be condemned for acting in contempt of court and failing to maintain the sattus quo on land parcel LR No. Magutu/Gathehu/178.

5. That she be condemned for ploughing the access road leading to the homes of the plaintiff and the 3rd, 4th and 5th defendant.

6. That the cost of this application be paid for by the 1st respondent.

2. The application is premised on, among other grounds, that the 1st respondent has discussed matters before the court outside the court contravening the sub-judice rule and that she has encroached on Magutu/Gathehu/178 which amounts to contempt of court.

3. The application is supported by the affidavit of Zachary Maina Munyua where the grounds on the face of the application are reiterated.

4. The following documents are annexed to the affidavit:-

I) A letter from the Assistant Chief Giakaibei sub-location dated 22nd July 2016 marked ZMM4;

II) A letter from Mr. Zachary M. Munyua to the Chief of Gathehu Location dated 23rd July, 2016 marked ZMM5;

III) A letter from Mr. Zachary M. Munyua to M/S Maina Karingithi & Co. Advocates, Teresia Wakanyi Mugo, Beatrice Wairimu Munyua, Catherine Wanjiru Munyua and Damaris Wanjiku Munyua dated 16th June, 2016; and

(IV) Certificate of Postage.

5. In reply and opposition to the motion, the 1st respondent filed grounds of opposition dated 23rd March, 2016that;

1. The applicant cannot allege the 1st defendant/ respondent to be in contempt of court as no orders has been issued by this honourable court;

2. The applicant has not stated how the 1st defendant/respondent has been in contempt of court without citing any violation of an order issued herein;

3. The applicant cannot hide behind the sub-judicerule and seek punitive custodial sentence against the 1st defendant/respondent where no wrong has been committed;

4. The applicant has since filing this suit specialized in filing numerous frivolous applications instead of setting the main suit for hearing;

5. The present application is misconceived, incompetent, lacks merits and is otherwise an abuse of the court process and ought to be dismissed with costs.

6. When the application came up for hearing, the applicant reiterated what was contained in his supporting affidavit. Counsel for the 1st respondent submitted that the applicant had not demonstrated how the 1st respondent had contravened the court order.

Analysis and determination

7. The order allegedly disobeyed by the 1st respondent was inter alia for maintenance of status quo issued by Wakiaga J on 7th July, 2014.

8. I have read and considered the affidavit evidence adduced in this case and I note that the applicant has merely made unsubstantiated allegations against the 1st respondent, which allegations the 1st respondent has denied.

9. Contempt proceedings being criminal in nature, it behooved the applicant to prove the allegations leveled against the 1st respondent by way of cogent evidence. In this regard see the cases cited hereunder: -

1. Sam Nyamweya & 3 others v Kenya Premier LeagueLimited & 2 Others (2015)eKLR where it was held:-

“…contempt proceedings are of a criminal nature and involve, if proved, loss of liberty, the applicant must therefore endeavor to prove all facts relied on beyond reasonable doubt. ..”

2. Eliud Muturi Mwangi (Practising in the name and style of Muturi & Company Advocates) v LSG Lufthansa Services Europa/ Africa GMBH & another[2015] eKLR where Gikonyo J., stated:-

“…the appropriate standard of proof which must be attained is as was set out in the case of OCHINO & OTHERS –VS- OKOMBO & OTHERS (1989) KLR 165, by the Court of Appeal that:-

“…the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt.”and

3. Peter K. Yego & others vs Pauline Nekesa Kodewhere the court recognizing that contempt of court is criminal, held that “it must be proved thatone has actually disobeyed the court order before one is cited for contempt. The applicant in a application for contempt must prove beyond peradventure that the respondent is guilty of contempt….”

10. Has the applicant made up a case for punishment of the 1st respondent?

Having considered the evidence adduced by the applicant against the 1st respondent, I find the same to be incapable of discharging the heavy burden imposed on the applicant of demonstrating that the 1st respondent breached the said orders of the court to warrant committing her to civil jail. I say this because no evidence was presented before the court capable of proving to the required standard of proof that the 1st respondent has contravened the orders issued by this court (read High Court) on 7th July, 2014 as alleged by the applicant.

11. Consequently, I dismiss the application with costs to the 1st respondent.

Dated, signed and delivered at Nyeri this 5th day of April, 2018

L. N. WAITHAKA

JUDGE

Coram:

N/A by the plaintiff

Nancy Wamuyu Munyua and 4 others

Court assistant - Esther