7.The Application was disposed of by written submissions. Both parties filed their submissions. The Applicant did file his dated 11/01/2023 on 16/01/2023 while the Respondents did theirs dated 14/11/2022 on the same date.
8.The Applicant summarized the Application and first of all defined contempt of Court using the Blacks Law Dictionary. He submitted that there having been an order dated 22/01/1996 which was specific, the Respondents were in contempt thereof for failing to honour it. They relied on the case of Kristen Carla Burchell vs. Grant Burchell (Eastern Cape Division Case No. 364 of 2005 where the court held that for such a punishment to ensue, there has to be terms of the order, knowledge of the terms by a respondent and failure to comply with the terms. He then summed up how the Respondents were aware of the order of the Kitale SPMCC 150 of 1996 directing that they curve out 0.8 acres out of Waitaluk/Mabonde Block 7/Koiyo/9, to be made part of Waitaluk/Mabonde Block 7/Koiyo/8 and failed to do so but rather they subdivided the title and registered it in the names of the children of the 1st Respondent. They also cited the case of B vs. Attorney General  1 KLR 431 and the Court of Appeal case of Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others, Civil Application No. Nai 247 of 2006.
9.He then submitted that the subdivision of the land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9, the subject matter of the suit herein was done deliberately and with the full knowledge of the pending suit in contravention of the doctrine of lis pendens which binds the Respondents. His submission was that the Respondents’ conduct was to demean the dignity of the Court and in disregard of a valid decree of the Court.
10.He summed it that Order 40 Rule 1 & 2 of the Civil Procedure Rules 2020 empowers the Court grant a temporary injunction aimed at restraining acts of damage or wastage of the property in issue pending the determination of the case. He relied on the case of American Cyanimid Co.(No 1) v Ethicon Ltd  UKHL 1 and Giella v Cassman Brown & Co. Ltd  EA 358. He then argued that the contention that the issues raised in respect of parcels No. Waitaluk/Mabonde Block 7/Koiyo/283-287 await the determination of the case was misconceived as ownership of the original parcel in question had never been determined and so the Respondents lacked power to subdivide and transfer the same before the determination of the suit hence an order of cancellation of the titles was appropriate. They further relied on the case of Rajender Sungh & ors vs. Santa Singh & ors, AIR, 1973, SC 337 where the Court explained the purpose of the doctrine of lis pendens. Further, he relied on the case of Mbugua Njuguna v Elijah Mburu Wanyoike and Another  eKLR and Anne Jepkemoi Ngeny v. Joseph Tereito & Another  eKLR where the Court of Appeal held that alienation of properties registered in the names of the parties during the pendency of litigation runs afoul the doctrine of lis pendens.
11.The Respondents on the other hand submitted that the instant Application was premised on an Application dated 11/03/2019 which revived the suit, ultimately. They stated that there was no suit to be revived since it had abated on 06/04/2010 since the said Joseph Metto died on 06/04/2009. They relied on Order 24 Rule 3 on revival of suits. Also, they cited the case of Mbaya Nulwa vs. Kenya Power & Lighting Co. Ltd, Mombasa High Court, Civil suit No. 39 of 2014. It was on abatement of suit.
12.They then submitted that in respect of seeking the implementation of the decree in SPMCC No. 150 of 1995, it could only be done in that suit and not this one. Also, they stated that the orders ought in prayers (d) and (e) were substantive ones only meant for the hearing of the main suit. Furthermore, that the suit having abated the orders cannot be granted. They relied on the case if Nairobi West hospital Limited vs. Joseph Kariba & another, Nairobi Misc. Application No. 415 of 2018 and Witmore Investment Limited vs County Government of Kirinyaga & 3 others, Kerugoya Constitutional Pet. No. 7 of 2015. They prayed that the Application be dismissed with costs.
Issues, Analysis And Determination
13.Upon carefully considering the Application, the rival Affidavits both in support and opposition, the submissions filed, as well as the statutory law and authorities cited, this Court finds that the issues for determination are:a.Whether the Respondents are in contempt of court;b.Whether the cancellation of the titles resulting from the subdivision of Waitaluk/Mabonde Block 7/Koiyo/9 should be made and the titles revert to the original;c.Whether the Court should order the excise of 0.8 acres from Waitaluk/Mabonde Block 7/Koiyo/9 as ordered in Kitale SPMCC No. 150 of 1995;d.What orders to issue and who to bear the cost of each Application.
14.The issues before me for determination are pretty simple. I will begin with the first one, on contempt of Court.
(a) Whether the Respondents are in contempt of court
15.The Applicant contends that the Respondents are in contempt of the Court orders issued on 22/01/1995 and should be found guilty of that order and be punished. It is clear that punishment for contempt of court is provided for under Section 29 of the Environment and Land Court Act. The provision reads as follows:
16.For this Court to determine whether or not there was breach of the orders of the Court which can lead to punishment for contempt of Court, it is worth understanding what constitutes Contempt of Court.
17.In Black’s Law Dictionary, 11th Edition, Thompson Reuters, 2019, p. 397, Bryan A. Garner borrows from Edward M. Dangel’s definition of contempt in his work, “Contempt” S 1, at 2 (1939) to render the term as “…a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or impair the respect due to such a body…”
18.Therefore, any party served with a court order or is in one way or other aware of the order of the Court is bound to obey it. The cardinal point is that the party has knowledge of the existence of the order. Courts of law do not issue orders in vain. It is imperative that any party against whom orders are directed obeys them. That would firm the rule of law and preserve the dignity of the Court.
19.Courts have not fallen short of emphasizing on obedience of orders of the Court. Thus, in Kenya Human Rights Commission v Attorney General & Another  eKLR, the Court emphasized as follows:
20.Similarly, in Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & Another CCT 19/11(75/2015). Nkabinde, J observed that:-
21.In Canadian Metal Co. Ltd v Canadian Broadcasting Corp(N0.2)  48 D.LR(30), the Court stated that:
22.In order for one to be found guilty of the Contempt of Court, four (4) elements must be proved. There must have been:(a)a valid order of the Court.(b)the order must have been served or been constructively in the knowledge of the alleged contemnor.(c)there must be an action or actions of a contemnor contrary to the order.(d)the actions of the contemnor in violation must be deliberate.
23.Therefore, it is not to be taken light of the fact that contempt of Court is an egregious act against the dignity of the Court and the functioning of the rule of law. It ought to be frowned at and punished swiftly. But it can only be done within the confines of the law otherwise it would defeat the purpose of the power of the Court to punish. I find so because, courts themselves cannot take part in the breakdown of the rule of law in the quest to enforce the observance of the rule of law itself.
24.As was held by the Court of Appeal in Michael Sistu Mwaura Kamau vs DPP & 4 Others eKLR, so I would hold, that:
25.Similarly, in Shimmers Plaza Ltd -vs- National Bank of Kenya Ltd  eKLR, emphasized as follows:
26.In this case, both the Applicants and respondents agree that there was an order issued on 22/01/1996. It was given in Kitale SPMCC No. 150 of 1995. They all agree it ought to have been obeyed by the parties to whom it was directed. It appears it was not, and actually the Respondents went ahead to subdivide the title No. Waitaluk/Mabonde Block 7/Koiyo/9 into five parcels and transferred them into other parties rather than first subdividing it in accordance with the order of the Court in the Kitale SPMCC 150 of 1995 matter. While that might appear to be a clear sign of disobedience, the question that remains unanswered is, can this Court find a party guilty of contempt of Court in a matter that is not before it? I am of the view that the answer is in the negative for two reasons. One is that for this matter to do so would raise a jurisdictional issue. Second, it would amount to interfering with the power and discretion of the Court that issued the order, even if it could have been of the same status. For these reasons, I decline prayer (c) of the instant Application.
(b) Whether the cancellation of the titles resulting from the subdivision of Waitaluk/Mabonde Block 7/Koiyo/9 should be made and the titles revert to the original
27.The Applicant prayed for the cancellation of the titles to land parcel numbers Waitaluk/Mabonde Block 7/Koiyo/283-287. His contention was that the same were resultant from the subdivision of land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9 which is the subject of the suit herein. He contented that the subdivision was done during the pendency and knowledge of the existence of the suit herein hence runs afoul to the doctrine of lis pendens. On the part of the Respondents, while it was admitted that indeed the five parcels of land were a subdivision of the original land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9, they argued that there was no court order barring them from subdividing the land and that the same was done to preserve the interests of the children of Zippy Khavere Juma, the deponent of the replying Affidavit.
28.The doctrine of lis pendens has a long history in its application in our courts. It has both statutory and common law origins. It is defined in Black’s Law Dictionary 11th edition, as the jurisdictional, power or control acquired by a court over property while a legal action is pending.
29.The doctrine is a common law principle which was enacted into statute by Section 52 Indian Transfer of Property Act (ITPA)-now repealed. The statute found its application in Kenya before the new land laws came into existence. Its purpose was well articulated by Turner L. J., in Bellamy vs Sabine  1 De J 566. He held as follows:-
30.In Kenya, the doctrine would be considered over a century and two decades later by our courts. Thus, in the case of Mawji vs US International University & another  KLR 185, Madan, J.A. stated thus:-
31.The Court went on to state that:-
32.While the ITPA was repealed, Section 107 (1) of the Land Registration Act which provides the saving and transitional provisions of this Act, had the effect of this permitting the continued applicability of the rights and interests ensuing from legislation that governed titles of properties established prior to the repeal of such legislation hence the doctrine remains applicable to relevant cases. But even then, since the doctrine is a common law principle, by virtue of Section 3 (1) of the Judicature Act Cap 8 stipulates it is applicable herein.
33.The circumstances of this case are that on 01/07/1997 the Plaintiffs brought this suit against Joseph Metto claiming a declaration that plot No. 9 Koyo Farm belonged to the Plaintiffs to the exclusion of the defendant whatsoever, and an injunction against the defendant from occupying or interfering in any manner with the plaintiff’s use of the said parcel of land.
34.The Defendant filled a Defence and Counterclaim on 20/01/2000. In the Counterclaim he averred that he was entitled to 0.8 acres to be curved out of Plot No. 9 Koyo Farm as per the decree of the Court in Kitale SPMCC No. 150 of 1995 and that contrary to the said decree the Plaintiff’s had curved out 0.8 acres from the Plaintiff’s father’s land known as Plot 99 Koyo Farm which was far off from the suit land and purported to give it to him. He prayed for the amendment of the Map and curving out of the 0.8 acres from plot No. 9 Koyo Farm as per the decree of the Court. The suit was initially filed in the Eldoret High Court as HCC No. 238 of 1997. It was transferred to Kitale and given HCC No. 22 of 1999 and then to Kakamega and allocated HCC No. 158 of 2000 and now is back to the Kitale ELC as No. 30 of 2020, the current number. Thus, it is clear that this is a very old matter before the Court.
35.It appears that on various occasions in the various courts, it was fixed for hearing. For instance, on 06/02/2001 it was fixed for hearing on 26/09/2001. On that date an adjournment was sought by the Plaintiffs and was declined. The suit was dismissed for non-attendance with costs to the Defendant. An Application was made to set aside the orders of the Court and on 23/07/2002 it was allowed by consent with costs of Kshs. 15,000/= being payable within seven days. After that other interlocutory proceedings were made but a hearing date for 18/12/2003 was given.
36.The record shows that from 22/02/2005 when the matter was for hearing and was put off for reasons that the Plaintiff ought to have amended their Plaint, nothing took place until 26/03/2015 when the Plaintiffs filed a Notice of Withdrawal of Suit. It was dated 18/03/2015. The Notice was noted on the Court file on 26/03/2015 that the suit was wholly withdrawn. But as this Court found by its Ruling of 1/02/2022, there was no suit to be withdrawn on that date because by virtue of the death of the Defendant on 06/04/2009, the suit against him abated on 06/04/2010 which was about six (6) years and two (2) months before the purported withdrawal.
37.But even so, it is borne from the record that after that purported withdrawal, nothing took place until 11/04/2019 when an application was filed seeking the transfer of the matter to Kitale ELC and a consent was filed settling part of the application to the effect that the file be transferred to this Court and the rest of the Application be canvassed before this Court.
38.Further record position shows that after the suit was transferred, on 24/03/2022 when the matter came up for the Application dated 11/03/2019, learned counsel holding brief for the Plaintiffs’ informed the Court the Plaintiffs were not opposed to the prayers (b) and (c) which were outstanding after the one of transfer was allowed. Thus, a consent was recorded in that manner. Prayers (b) and (c) were to the effect that the Court to issue an order of revival of the suit and in particular the Counterclaim does issue, and the Court substitutes the Applicants (being Timothy Cheruiyot and Pauline Chebet Serem) being legal representatives of the deceased Defendant to assume the position of defendants/ Plaintiffs in the Counterclaim.
39.This Court has given the summary of the history of this suit above so that it may now make a finding on the contention raised by the Respondents that there was no suit to be revived vide the application dated 11/03/2019 since it had abated and that no application for extension of time was filed, that indeed the prayers in the Application were clear about the revival of the Counterclaim. Further, the prayer was allowed and the Counterclaim was revived by consent and substitution made. It is therefore illogical that there can be an argument along those lines.
40.Having found that the suit herein was revived according to the law, I now proceed to consider the issue of the subdivision of the title Waitaluk/Mabonde Block 7/Koiyo/9 during the pendency of the suit. In my view that was done with the intention to defeat or obstruct the suit herein and was against the doctrine of lis pendens. I therefore would grant the prayer for cancellation of all the titles that resulted from the subdivision of the parcel in question. And by virtue of Section 3A of the Civil Procedure Act, and to preserve the same, after cancellation of the titles and the reverting to the original land parcel number, an order of inhibition is issued to be registered against the said title pending the hearing and determination of this suit.
(c) Whether the Court should order the excise of 0.8 acres from Waitaluk/Mabonde Block 7/Koiyo/9 as ordered in Kitale SPMCC No. 150 of 1995
41.It was urged that the Court does grant the order to excise 0.8 acres of land from land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9. My understanding of the Counterclaim is that the prayer being sought at this stage is at the nerve centre of the Defendant’s/Applicant’s claim against the Plaintiffs. It cannot therefore issue at this stage for that would amount to concluding the Counterclaim without evidence being tendered thereon. I decline the prayer.
(d) What orders to issue and who to bear the cost of each Application
42.The upshot is that the Application dated 30/05/2022 succeeds in part. I therefore allow it on the following terms, that prayer No. (d) is hereby granted. This Court issues and order cancelling the survey of land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9 and the resultant subdivisions, namely, Waitaluk/Mabonde Block 7/Koiyo/283, Waitaluk/Mabonde Block 7/Koiyo/284, Waitaluk/Mabonde Block 7/Koiyo/285, Waitaluk/Mabonde Block 7/Koiyo/286 and Waitaluk/Mabonde Block 7/Koiyo/287 and directs that the title to land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9 be restored. This Court further issues an order of inhibition to be placed on the restored title forthwith pending the hearing and determination of this matter. The Applicants shall have the costs of the Application.
43.It is so ordered.