Analysis and determination
9.Having read and considered the pleadings and written submissions, the issues that fall for determination are (i)whether prayer (b) is res judicata (ii)whether the prayers for contempt of court are merited.
10.Notwithstanding the application dated November 15, 2022 was not the subject for determination, I have glimpsed it and taken notice similar prayers were sought in the plaintiff’s application dated February 23, 2022 and another one dated May 18, 2020.
11.In a ruling rendered on July 30, 2021 on the latter application, the prayers he is seeking in his application dated November 15, 2022 were disallowed. As of now, I restrain myself from making any findings on the application dated November 15, 2022.
12.I have also noted the defendant in his entire submissions adduced evidence. Parties must be reminded submissions are arguments and not evidence. If at all he wanted to oppose the motion, nothing could have been easier than for him to file documents in opposition. To this end, his submissions will be disregarded. Even if the motion is unopposed, it will be subjected to merit evaluation. I will now proceed to consecutively address the issues for determination.
13.The doctrine of res judicata is provided for under Section 7 of the Civil Procedure Act in the following terms: -‘No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.’
15.In an application dated May 18, 2020, the plaintiff sought orders of eviction against the defendant. In a ruling rendered on July 30, 2021, this order was granted. He filed another application dated August 18, 2021 in which he sought for the OCS Sega to provide security during eviction of the defendant. An order to this effect was issued on August 20, 2021.
16.In prayer no. (b) the plaintiff sought similar prayers which have already been heard and determined by a competent court. No doubt, this prayer (b) falls on all four corners of the doctrine of res judicata as set out in Section 7 of the Civil Procedure Act and on that basis, I find prayer (b) incompetent and I hereby strike it out.
17.Section 5 of the Judicature Act confers jurisdiction to punish contemnors for contempt of court. This provision of law also applies to courts of equal status to the high court and provides as follows: -
19.Courts punish contemnors for their failure to uphold the dignity and authority of the court and for disobedience of its orders. It enhances expeditious resolution of disputes by ensuring compliance with directions of the court, observance and respect of due process of law, preservation of an effective judicial system and maintains public confidence in the administration of justice by courts.
21.Contempt proceedings are criminal in nature and proof of a case against a contemnor is higher than that of balance of probability. This is because the liberty of the contemnor is at stake and an applicant must prove the ingredients of contempt have been established.
22.In this case, the motion did not disclose which orders the defendant and OCS had disobeyed but it is evident from the record they were the eviction orders issued on March 13, 2019 and August 16, 2021 against the defendant and an order issued on August 20, 2021 against the OCS Sega Police Station to provide security. He has not sought an order for the contempt proceedings to be purged and has left the court to exercise its discretion on the nature of punishment to be merited against the contemnors.
23.In applying the principles of contempt proceedings to the circumstances of this case. The motion and affidavit are silent on when the orders were served on the parties.
24.In an affidavit dated December 30, 2021 in support of an application dated the instant date, the defendant admitted he became privy to the order issued on August 20, 2021.
25.There can be no doubt the defendant was at all times aware of the judgment and more particularly the decree issued on March 13, 2019 which ordered his vacation from the suit property and in default eviction order do issue. This manifest from the request for proceedings and judgment made on March 6, 2019, his notice of appeal dated March 6, 2019, an application for stay of execution dated May 15, 2019 and an application for review of the judgment and subsequent orders dated July 14, 2022.
26.As for the order prayed against the OCS Sega, eviction orders are usually executed by appointed court bailiffs and the court only issued an order for the police to provide security. Put differently, the OCS’s role and that of his officers were restricted to maintaining law and order as the court bailiffs performed their duties.
26.The plaintiff has not tendered any evidence demonstrating court bailiffs had been secured to execute the orders issued on August 16, 2021 on a particular date to enable the OCS Sega comply with the order and provide security on that particular date.
26.In applying the principles highlighted above to the circumstances of this case, I am persuaded the plaintiff has demonstrated that the defendant was privy of orders issued against him to vacate the suit property and had willfully failed, refused and or neglected to obey the said orders. I find the defendant is in contempt of the court orders issued on March 13, 2019.
26.However, the same cannot be said of the OCS Sega. His execution of the order was incumbent upon the court bailiff’s participation in the eviction process. On that basis, I find he is not in contempt of court.
26.In view of the above reasons and findings, the upshot is that I find the defendant Dismas Otieno Ogoya in contempt of court for disobedience of the court order issued on March 13, 2019. The plaintiff’s costs shall be borne by the defendant. Accordingly, I hereby issue the following disposal orders: -
a.The defendant is hereby directed to purge his contempt within the next 14 days by complying with the orders issued on March 13, 2019.b.In default of compliance with order (a) above, the matter shall be mentioned on October 18, 2022 for purposes of mitigation, sentencing and further orders.c.Save for mitigation and sentencing, the defendant will not be heard by this court or be allowed to participate in these proceedings until he has purged his act of contempt.d.The plaintiff’s costs shall be borne by the defendant.31. Orders accordingly.