Analysis and DeterminationPARA 10.Upon consideration of the Plaintiff’s Notice of Motion Application dated the 12th April, 2023 and the 1st and 2nd Defendants’ Notice of Motion Application dated the 17th April, 2023 including the respective Affidavits as well as rivalling submissions, the following are the issues for determination:
- Whether the 1st and 2nd Defendants including the Interested Party should be cited for contempt of the court orders issued on the 29th November, 2022.
- Whether the Orders issued on 29th November, 2022 should be set aside.
11.The Plaintiff in its submissions to the Application dated the 12th April, 2023 stated that the 1st and 2nd Defendants had knowledge/notice of the order as they got an advocate to represent them on 15th March, 2023. It argues that the orders issued on 29th November, 2022 were disobeyed and relied on its averments as per the respective affidavits. On the Application dated the 17th April, 2022, it argued that the said Application is an abuse of the court process and has been overtaken by events as the Defendants have already responded to the Application dated the 25th November, 2022. It relied on the averments in its Replying Affidavit and the entire record. To support its averments, it relied on the following decisions: Civil Case No. E 018 of 2021 (OS) DKG v EG  eKLR; Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another  eKLR and Standard Resource Group Ltd v Badawy & 2 Others  eKLR.
12.The 1st and 2nd Defendants in their submissions to their Application insist that the ex parte orders granted on 29th November, 2022 were not served within three (3) days as required by law but were purportedly served on 6th March, 2023. Further, the 1st and 2nd Defendants advocates were only served on 27th March, 2023. They argue that the ex parte Order automatically lapsed. They insist that the Plaintiff is guilty of material non-disclosure as it is neither the lawful owner of the suit land nor has it ever enjoyed possession. They reiterate that the interim orders of injunction granted amounted to an eviction. On the Application for contempt, they insist that the order purported to have been disobeyed was not served upon them on time thus lapsed automatically as at the time of service on 27th March, 2023 hence cannot form the basis for contempt. Further, there is no evidence that the 1st and 2nd Defendants disobeyed the Court Order which amounted to an eviction. To support their averments, they have relied on the following decisions: Samuel Maina & 4 Others v Murugi Kanyeki Ngobu  eKLR; Signature Tours & Travel Limited v National Bank of Kenya Limited  eKLR;Fatuma Mohamed Abdi & Another (Suing as their guardian ad litem and next friend of Amina Chawahir Said & Fatuma Shukri Said) v Michael Barasa Mangeni  eKLR; Jonathan Kipyegon Maina V John Kiptonui Matingwony & 4 others  eKLR; Esther Kakonyo Wanjohi v Julian Wambui Gakuru  eKLR; Benjamin Barasa Wafula v Attorney General & 14 Others  eKLR and Francis Nyaga Njeru v China Road & Bridge Corporation & 3 others  eKLR.
13.As to whether the 1st and 2nd Defendants including the Interested Party should be cited for contempt of the court orders issued on the 29th November, 2022.
14.The Plaintiff seeks to have the 1st and 2nd Defendants as well as the OCS Mlolongo Police Station cited for contempt claiming they disobeyed the orders of this Court issued on 29th November, 2022. For the avoidance of doubt, I wish to reproduce the said Orders:
15.The Plaintiff confirms the Order was served upon the 1st and 2nd Defendants on 6th March, 2023. Further, that after service of the said Order, the 1st and 2nd Defendants including their agents procured an ex parte order in Milimani Chief Magistrate’s court, invaded the suit land and destroyed the fence.Black’s Law Dictionary (Tenth Edition) defines contempt of court as follows:-
16.The law of contempt in Kenya is anchored on Section 63(c) of the Civil Procedure Act which provides as follows:
17.Further, Section 29 of the Environment and Land Court Act stipulates thus:Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”While Section 4(1) (a) of the Contempt of Court Act defines civil contempt as “willful disobedience of any judgement, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court.”
18.In the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo (as he then was) stated that:
19.In Benjamin Barasa Wafula v Attorney General & 14 others  eKLR, it was held that:See also the case of Esther Kakonyo Wanjohi v Julian Wambui Gakuru (2018) eKLR and Samuel Maina & 4 Others v Murugi Kanyeki Ngobu (2016) eKLR.
20.In this instance the Plaintiff confirms serving the 1st and 2nd Defendants on 6th March, 2023. From the Affidavit of Service, there is no indication if there was a Penal Notice attached to the Order served. Since the Court Order was served more than three months after it had been issued ex parte, I find that the Defendants were indeed not aware of it, nor its terms until the 6th March, 2023. As per the legal provisions cited above while associating myself with the decisions quoted and applying them to the circumstances at hand, I find that since the Plaintiff failed to adhere to the set timelines to serve the ex parte order within three days from the 29th November, 2022 when it was issued, the said order automatically lapsed by operation of law and hence the 1st and 2nd Defendants including the Interested Party cannot be cited for contempt for a non-existent order.
21.As to whether the Orders issued on 29th November, 2022 should be set aside.
22.The 1st and 2nd Defendants have sought to set aside the orders issued on 29th November, 2022. I note as per the impugned Order dated the 29th November, 2022, the Plaintiff was supposed to serve in three days which it failed to do, hence the orders automatically lapsed by operation of the law. I hence find that there is no order to set aside since the same had already lapsed.
23.Be that as it may, noting that the 1st and 2nd Defendants have also presented a Certificate of Title claiming ownership of the suit land, I will direct that the obtaining status quo be maintained so that whoever is on the suit land remains thereon pending the determination of the Notice of Motion dated the 25th November, 2022.
24.In the foregoing, I find the Notice of Motion Application dated the 12th April, 2023 unmerited and will disallow it. I further find the Notice of Motion Application dated the 17th April, 2023 merited but will not make the orders as sought as they have been overtaken by events.
25.I make no order as to costs.