Please Wait. Searching ...
Mocho (suing as the legal administrator of the estate of Taplule Cherop Saranda) v Chepkengei Posho Mill Group & 3 others (Environment & Land Case 25 of 2019) [2022] KEELC 14999 (KLR) (24 November 2022) (Ruling)
Neutral citation:
[2022] KEELC 14999 (KLR)
Republic of Kenya
Environment & Land Case 25 of 2019
MC Oundo, J
November 24, 2022
Between
Peter Kibet Mocho
Plaintiff
suing as the legal administrator of the estate of Taplule Cherop Saranda
and
Chepkengei Posho Mill Group
1st Defendant
Richard Kiptonui Bett
2nd Defendant
Land Registrar Bomet
3rd Defendant
Attorney General
4th Defendant
Ruling
1.By an Application dated the 18th November 2019, brought pursuant to the provisions of Section 3A of the Civil Procedure Act, the 1st Defendant/ Applicant herein seeks to cite the Plaintiff Respondent for contempt of the court orders issued via a ruling delivered on 27th September 2019 where the court had ordered parties to maintain the status quo prevailing before the filing of the suit, pending the hearing and determination of the same.
2.The said application was supported by the grounds set on the face of it as well as on the supporting affidavit of one Augustine Kimilgo Sang sworn, on behalf of the 1st Applicant, on the 18th November 2019.
3.The Application was opposed through the Notice of Preliminary Objection dated then 6th March 2020 for reason that the same was served upon Counsel for the Plaintiff/Respondent instead of being served upon the Plaintiff/Respondent personally and secondly that the said application was incompetent having been brought under the wrong provisions of the law.
4.The Preliminary Objection was disposed of in the first instance wherein vide a ruling delivered by the court on 26th February 2021 the court found the same to be unmeritorious and dismissed it with costs. The Plaintiff/Respondent thereafter filed another set of Grounds of Opposition dated the 22nd June 2022 apparently based on the same grounds of opposition that had been dismissed but using a different terminology to the effect that the order alleged to have been disobeyed ought to have been extracted and brought to the attention of the Plaintiff through personal service. That the said application was intended to intimidate the Plaintiff not to prosecut the suit and further that the ruling of 27th September 2019 was not injunctive in nature as the Plaintiff was not barred from using the suit land.
5.By an order of the court of 25th November 2021, in the presence of Counsel for the Plaintiff and the 1st and 2nd defendants, the court had directed that the application be disposed of by way of written submissions.
6.The Applicant’s submissions dated 14th February 2022 were to the effect that pursuant to the delivery of the ruling dated 27th September 2019 where the court had ordered parties to maintain the status quo pending hearing and determination of the suit, the Plaintiff had forcefully moved into the parcel of land No. Kericho/Kapkelelei/1250, displaced the Applicant who had been in occupation since 1980 wherein he had then started ploughing it.
7.The Applicant framed the issues for determination as follows;i.Whether the application was served on the Plaintiff.ii.Whether the Plaintiff/Respondent has violated the court order dated 27th September 2019 requiring parties to maintain the status quo prevailing before the filing of the case.iii.Whether the Respondent should be punished.
8.The Applicant proceeded to submit that service of the application for contempt had been effected upon Counsel who had received the same without protest and since the suit was ongoing, he was bound to inform his client clearly and timeously of what was going on. That personal service was desirable but was not mandatory in all situations.
9.That the Plaintiff had not challenged the application save for filing a preliminary objection which had been dismissed. The Plaintiff had violated the order for status quo when he moved onto the land and the court under the provisions of Section 29 of the Environment and Land Court Act had the authority to punish him for contempt, upon conviction, to a fine not exceeding one million or imprisonment not exceeding two years or both.
10.The Plaintiff had not offered any explanation as to why he had not complied with the orders of the court which orders ought to be respected at all times. The Contemnor was still in possession of the suit land to date and therefore was guilty of contempt and he ought to be convicted and sentenced accordingly. The Applicant sought for costs.
11.The application on the other hand was opposed by the Plaintiff’s undated submissions filed on 28th June 2022 to the effect that what was not in dispute was that on 27th September 2019, the court had delivered a ruling directing the parties to maintain the status quo pending the hearing and determination of the suit. That these orders were not extracted and personally served upon the Plaintiff who is alleged to have violated the same.
12.That the law on contempt proceedings, which are quasi criminal in nature, is fairly settled to the effect that when a person is found guilty for civil contempt he or she may be jailed or property sequestered and it is therefore for this reason that the rules of natural justice have to be strictly complied with.
13.That Plaintiff/Respondent relied on the decided case in Woburn Estates Limited vs. Margaret Bashforth [2016] eKLR to submit that there was no order directed to the Plaintiff which was violated and therefore the application dated 19th November 2012 (sic) did not meet the threshold requirement for contempt of court and thus the same should be dismissed.
Determination.
14.I have considered submissions by both Counsel for the Applicant and the Defendants. The Black’s Law Dictionary (Ninth Edition) defines contempt of Court as:-
15.The law guiding the present Application is Order 40 Rule 3(1) of the Civil Procedure Rules which stipulates as follows:-
16.In the case of Woburn Estate Limited v Margaret Bashforth [2016] eKLR the Court of Appeal held as follows:Today that position has drastically changed, starting with the establishment of the Supreme Court which was not envisaged when section 5 of the Judicature Act was enacted. By Act No.7 of 2011, Article 163 (9) of the Constitution was operationalized by the enactment of the Supreme Court Act (CAP 9A), which among other things, makes express provision for the power of the Supreme Court to punish for contempt.Under section 29 of the Environment and Land Court Act, it is an offence punishable, upon conviction to a fine of not exceeding Kshs.20,000,000 or to imprisonment for a term not exceeding two years, or to both, if any person refuses, fails or neglects to obey an order or direction of the Court given under the Act.We have gone to this great length to demonstrate how, before the passage of these legislations the powers of the High Court and this Court to punish for contempt of Court were dynamic and kept shifting depending on the prevailing laws in England. Today each level of Court has been expressly clothed with jurisdiction to punish for contempt of Court. The only missing link is the absence of the rules to be followed in commencing and prosecuting contempt of Court Applications’’
17.It was in this respect as observed in the case of Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya HCMCA No. 13 of 2008, that the High Court (read Environment and Land Court) has the responsibility for the maintenance of the rule of law, hence there cannot be a gap in the Application of the rule of law.
18.In addition, in the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR, it was held that where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court, the Court is perfectly within its rights to adopt such a procedure as would effectually give meaningful relief to the party aggrieved, in exercise of the inherent jurisdiction granted to the Court by Section 3A of the Civil Procedure Act to grant such orders that meet the ends of justice and avoid abuse of the process of Court.
19.Section 5(1) of the Judicature Act which provided that:
20.Section 29 of the Environment and Land Court is clear to the effect that;
21.In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR the Court held thatIt is a crime unlawfully and intentionally to disobey a Court order.This type of contempt of Court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the Court. [36] The offence has in general terms received a constitutional ‘stamp of approval,’since the Rule of Law – a founding value of the Constitution – ‘requires that the dignity and authority of the Courts, as well as their capacity to carry out their functions, should always be maintained.’
22.It is an established principle of law as was held in the case of Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005 in order to succeed in civil contempt proceedings, the Applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order.
23.From the sworn affidavit, annexures, submissions by the Applicant’s Counsel, the applicable law and the decided cases, the following issues stand out for determination:-i.Whether the Plaintiff herein was served with or was made aware of the order of 27th September 2019.i.Whether there was any valid Court order issued by this Court on the 27th September 2019.ii.Whether the Plaintiff is guilty of contempt of Court order issued on 27th September 2019.
24.On the first issue as to whether the Plaintiff herein was served with or was made aware of the order of 27th September 2019, in the case of Kenya Tourist Development Corporation vs Kenya National Capital Corporation & Another, Nairobi High Court Civil Case No. 6776 of 1992, it was held that the knowledge of an order supersedes personal service.
25.In the instant case, the proceedings are clear that on 27th September 2019 Counsel for the Plaintiff and Counsel for the 1st and 2nd Defendants were present in court when the ruling was delivered in the following terms;
26.The court then directed the parties to comply with the provisions of Order 11 of the Civil Procedure Rules within 30 days.
27.The Court of Appeal in the Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR had posed the question whether knowledge of a Court order or judgment by an Advocate of the alleged contemnor would be sufficient for purpose of contempt proceedings and answered the question in the affirmative stating:-
28.Indeed from the Court’s record, the same is clear that the order of the Court had been delivered and/or issued in the presence of Counsel for the Plaintiff /Respondent. This Court thus finds that the Plaintiff/Respondent had knowledge of the Court’s orders and therefore personal service was unnecessary
29.On the second issue for determination as to whether there were any valid orders issued by this Court. I find that the Court had directed that that:
30.The Plaintiff/Respondent in his response has not disputed that indeed there had been a valid order issued by the Court and I therefore find that indeed the said orders of the 27th September 2019 was a valid order.
31.On the last issue as to whether the Plaintiff/Respondent brazenly disobeyed the orders of the Court, I have considered the submission by Counsel as well as looked at the annexures herein annexed to the Application herein. It is not in dispute that the pictures annexed marked as ‘AKS2’ show an activity of ploughing going on in the suit land, an activity which has not been disputed by the Plaintiff/Respondent whose defence (at para 4 of his grounds of opposition dated 22nd June 2022) was that the ruling of 27th September 2019 was not injunctive in nature as the Plaintiff was not barred from using the suit land. From the date of the said grounds of opposition it is clear that the contemptuous acts which began in 2019 are still ongoing.
32.The Scottish case of Stewart Robertson vs. Her Majesty’s Advocate, 2007 HCAC 63, Lord Justice Clerk stated that:
33.Further, Romer L.J in Hadkinson vs. Hadkinson(1952) ALL ER 567 stated that:
34.From the foregoing, it is trite that contempt of Court proceedings and Applications are subtle and criminal in nature and would impose criminal sanctions if a conviction followed.
35.It has been held by the Courts that unless and until a Court order is discharged, it ought to be obeyed. Indeed the Court of Appeal in Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others, Civil Application No. Nairobi 247 of 2006 held that it was a fundamental tenet of the rule of law that Court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.
36.In the case of Awadh vs. Marumbu (No. 2) No. 53 of 2001 (2004) KLR 458, the Court held that it is the duty of the Court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with the approved contemnors.
37.I find that the Plaintiff/Respondent herein willfully and intentionally defied orders of the Court despite knowledge of the same. His action of ploughing and/or engaging in activities within the suit property ran afoul of the terms of the Court orders issued on the 27th September 2019 which had directed that parties maintain the status quo prevailing before the filing of this case pending the hearing and determination of the suit. I thus find that the Plaintiff/Respondent herein is in blatant contempt of Court orders and will proceed to punish him for contempt.
38.The 1st Defendant /Applicant’s Application dated the 18th November 2019 is herein allowed with costs.
DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 24TH DAY OF NOVEMBER 2022M.C. OUNDOENVIRONMENT & LAND – JUDGE
