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|Case Number:||Civil Suit 76 of 2008|
|Parties:||ANJODI KENYA LIMITED v SAHA MKUZI TEITEI|
|Date Delivered:||15 Dec 2010|
|Court:||High Court at Malindi|
|Judge(s):||Hellen Amolo Omondi|
|Citation:||ANJODI KENYA LIMITED v SAHA MKUZI TEITEI  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
ANJODI KENYA LIMITED .........................................................................................PLAINTIFF
R U L I N G
It also seeks that the suit premises be broken open for the Court Bailiff and auctioneers to gain access and attach all the immovable properties therein belonging to the defendant at his costs. That the O.C.S. Kilifi do avail Security during the said attachment and the Respondent’s arrest be effected by the O.C.S.
1 This court issued orders on 11th June 2010, requesting the Defendant/Respondent through himself, his agents, servants, legal representatives or anyone claiming interest through him, from trespassing and remaining in the suit property.
Currently the applicant is living on a hotel, yet she has a house she could live in, all because of the respondent’s disobedience to the court orders.
The parties disposed of this matter by way of written submission. The extracted order of the court stems from a ruling delivered on 7th October 2009 and subsequently signed and sealed on 11th June 2010. The order read as follows;
The order was served on the respondent on 12th June 2010.
Mr. Otara submitted that on 22nd July 2010, the defendant appeared on court and confirmed service but said he would not obey the court orders because his advocate had advised him not to obey these orders. He however had not filed any evidence to confirm those claims. It was Mr. Otara’s contention, that since the respondent has personally confirmed disobeying the court’s orders then he might be punished as provided under Order XXXIX Rule 1 and 2 of the Civil Procedure Rule.
He denies being personally served with the order, saying he just learnt that the said order was served on his cousin one Dzunga who had visited his mother and after service; he left with all the documents and did not confirm the respondent.
He explains that he had not moved from the suit premises because the same were not forwarded and his presence and that of his family act as security over the property, saying if they left, then the property would be vandalized. He states that the application is simply intended to intimidate him. He then states that in the event this court finds him guilty of contempt, then he ought not be given the optimum of a non custodial sentence.
I have re-read the ruling dated 7th October 2008 – there is no contradiction in terms of the orders given and what the court observed, injunction orders were to restrain activities by the report which included remarrying in the suit premises or trespassing, eviction means forceful ejection, which the court was persuaded that given the circumstances, a forceful ejection was uncalled for at that stage. The restraining orders were clear – “keep off the suit property until the sit is heard and determined.” He had clearly confirmed non compliance pretending to now give a new meaning or interpretation to the orders. The attempting to justify his disobedience by saying his presence and that of his family offers security to the property.
a) Coming to this court for review of the orders or
He did neither of these and he does not deny that after issuance of those orders he actually brought in his family – as though to dispute the orders. That explanation is not acceptable neither is it satisfactory and he can’t now clutch to the absence of his advocates as an excuse, after all at the front when complainants were raised about his disobedience, he still had Mr. Mtara Jewa on record, and respondent attended court and confirmed that he was advised by his advocate not to obey the orders.
The rest of his affidavit and submissions contain arguments which would have best fitted in an appeal or prayers for setting aside or review of orders and not for contempt.