ANALYSIS AND DETERMINATION
13.Having considered the application, the affidavits and the rival submissions, I find that the issue for determination is whether the 4th Respondent is in contempt of the Court orders issued on 17th of May 2021.
14.The Black’s Law Dictionary 9th Edition defines contempt of court as;
15.In Econet Wireless Kenya Ltd Vs Minister for Information & Communication of Kenya & Another (2005) eKLR Ibrahim J (as he then was) stated as follows;
16.The Applicant cited the provisions of Section 5(1) of the Judicature Act which confers jurisdiction on the superior Courts to punish for contempt and provides that;
17.The law guiding the present application is Order 40 Rule 3(1) of the Civil Procedure Rules which provides as follows;
18.The High Court of South Africa in the case of Carla Burchell Vs Barry Grant Burchell Eastern Cape Division Case No. 364 of 2005 held that in order to succeed in civil contempt proceedings, an Applicant has to prove;i)The terms of the order,ii)Knowledge of these terms by the Respondent,iii)Failure by the Respondents to comply with the terms of the order.
19.Back home, in the case of Samuel M.N. Mweru & Others Vs National Land Commission & 2 Others (2020) eKLR the Court set out the elements to be proved in an application for contempt of court as follows;
20.The first issue for determination is whether the terms of the order were clear. It is not in dispute that on 17th of May 2021, the Court pursuant to the application dated 9th of April 2021, issued a conservatory order restraining the Respondents from either by themselves or through their agents, servants, employees, workers, proxies or anyone acting on their behalf or under their command from verifying and marking the boundaries, repossessing, allocating, transferring, evicting, threatening to evict or in any other way interfering with the possession, occupation, use and quiet enjoyment by the Petitioners of Plot No. 444 Kiboko B Settlement Scheme pending the hearing and determination of this Petition.
21.The order was unambiguous as it restrained the Respondents from interfering with or doing any act that would be prejudicial to the Petitioner’s quiet possession of Plot No. 444 Kiboko B Settlement Scheme.
22.To this end I find that the order issued on the 17/04/2021 was clear and unambiguous.
23.The next issue for determination is whether the 4th Respondent was served or had proper notice of the order. The Applicant in her supporting affidavit averred that the 4th Respondent Counsel was served with the order on 18th of May 2021. Counsel for the 4th Respondent did not dispute the same. The 4th Respondent in his replying affidavit admitted that although he was not served with the order, he was aware of the order. I am therefore satisfied that the 4th Respondent was aware of the terms of the order. I also find that the terms of the order were clear in terms of the parcel number and the Conservatory order.
24.On the issue whether the 4th Respondent has deliberately breached the Court order, the Applicant herein has a duty to prove his case beyond the balance of probabilities. This is because Contempt of Court is in the nature of criminal proceedings and the liberty of the subject is usually at stake. The Applicant must prove wilful and deliberate disobedience of the Court Order if he were to succeed as was held in the case of Gatharia K. Mutitika Vs Baharini farm Ltd (1985) KLR where the court held that;
25.Similarly, in the case of Peter K Yego & Others Vs Pauline Wekesa Kode ACC No. 194 of 2014 the Court held that;
26.In the present application, the Conservatory Orders issued by the Court relates to Plot No. 444 Kiboko B Settlement Scheme. The Applicant averred that the Respondent in blatant disregard of the orders issued on 17th of May 2021 ploughed the suit land with the assistance of hired goons. She averred that the goons were armed and when she tried to resist the trespass and ploughing of the suit land, the goons threatened her with dire consequences. The Applicant in her supporting affidavit annexed photographs that depicted men at work, a tractor ploughing the land and the ploughed suit land.
27.The 4th Respondent on the other hand stated that he is the lawful registered owner of the suit land. He stated that the Applicant had trespassed on 2 acres of the suit land. He produced a letter dated 4th of May 2021 from the Sub County Land Adjudication and Settlement Officer Kibwezi Sub County to demonstrate that he was registered owner of the suit land. He argued the Court did not issue orders restraining him from cultivating his portion of land. The 4th Respondent submitted that the suit land was ploughed by his wife in his absence who did not perceive it to be an act of contempt of Court.
28.In the case of Mutitika Vs Baharini Farm Ltd (1985) eKLR the Court of Appeal held that;
29.This Court has examined all the photographs annexed to the Applicant’s supporting affidavit. There is clear evidence of men and a tractor at work on the suit land. It is crystal clear that the suit land has been ploughed. The Respondent equally admitted that the suit land was ploughed by his wife.
30.In the case of Commercial Bank of Africa Ltd Vs Ndiragu (1992) KLR the court of Appeal held that;
31.I find that the 4th Respondent was aware of the order issued on 17th of May 2021 as he acknowledged the same in his replying affidavit. His Advocate was equally served with the said orders. The 4th Respondent ploughed the suit land despite the fact that the orders issued on 17th of May 2021 had not been set aside. I find that the 4th Respondent wilfully and deliberately defied the orders of the Court despite being aware of the same.
32.Court orders must be obeyed whether a party agrees with its contents or not. As long as the order subsist, it is not open for a person to choose whether or not to comply with or to ignore such orders.
33.I find that the 4th Respondent is in contempt of the orders of the Court for which he should be punished. The 4th Respondent is directed to appear before this Court on an agreed date for sentencing and or sanctions against him.