Ashon Sikolia Wanyonyi & Luka Makokha Wanyonyi v Selina Namalwa Masoni, Bungoma County Government; Alexander Muchai (Contemnor) [2019] KEELC 3324 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT BUNGOMA

ELC CASE NO. 160 OF 2017

ASHON SIKOLIA WANYONYI........................................1ST PLAINTIFF

LUKA MAKOKHA WANYONYI....................................2ND PLAINTIFF

VERSUS

SELINA NAMALWA MASONI.....................................1ST DEFENDANT

BUNGOMA COUNTY GOVERNMENT......................2ND DEFENDANT

ALEXANDER MUCHAI......................................TENANT/CONTEMNOR

R U L I N G

On 19th July 2018 I delivered a ruling on the plaintiff’s Notice of Motion dated 11th December 2017 granting injunctive orders with respect to the suit plot i.e. NO 74 (also known as Plot NO 7996/71) WEBUYE MUNICIPALITY.  Among the orders I made was the following:-

2: “The Deputy Registrar to visit the suit plot and serve notices to all the tenants that w.e.f 1st August 2018 and until further notice after this suit is finalized, all rent shall be deposited in this Court on account for both the plaintiffs and the 1st defendant.  The Court shall make further orders with regard to that rent after trial.”

It would appear that the above order was not complied with because by their Notice of Motion dated 17th September 2018 and brought under Sections 3 and 3A of the Civil Procedure Actand Order 40 Rules 2, 3, and 4 of the Civil Procedure Rules, the plaintiffs seek the following Orders:-

(a) Spent

(b) That it pleases the Honourable Court to cite the interested party who is a tenant in the suit premises herein one ALEXANDER MUCHAI for deliberate abuse and contempt of this Honourable Court’s orders.

(c) That the said tenant be ordered committed to prison and his goods attached for damages and accrued rent as the Court deems fit.

(d) That costs be borne by the interested party/Contemnor.

The application is premised on the grounds set out therein and supported by the affidavit of ASHON SIKOLIA WANYONYI the 1st plaintiff herein.  The gravamen of the application is that having been served with this Court’s orders issued on 19th July 2018 directing the tenant to deposit rent in this Court from 1st August 2018, the tenant has colluded with the 1st defendant to defeat that order.  That the 1st defendant can still be ordered to deposit the said money in Court.  Annexed to the Supporting Affidavit is this Court’s order issued on 19th July 2018.

The application is opposed and ALEXANDER MUCHAI the tenant/Contemnor herein has filed a Replying Affidavit dated 9th November 2018 confirming that indeed he is a tenant to the plaintiffs and has already paid rent for the period 2016 – 2017 upto April 2018 in compliance with a letter dated 22nd November 2017from the firm of WAMALWA SIMIYU & CO ADVOCATES (annexture AM 2).  He annexed a copy of receipt No. 009 dated 2nd July 2018 showing that on that day, he paid Kshs. 150,000/= in rent to the 1st plaintiff for the period July – December 2018 and that he has no problem complying with this Court’s order from January 2019.  That upon being served with this Court’s order, he explained his predicament to the Deputy Registrar vide his letter dated 20th August 2018.

The application was canvassed by way of written submissions which were filed both by MR SICHANGI ADVOCATE for the plaintiffs and MR OCHARO KEBIRA ADVOCATEfor the tenant/Contemnor.

I have considered the plaintiff’s Notice of Motion dated 17th September 2018, the rival affidavits and annexture as well as the submissions by counsel.

There is no doubt that the tenant/Contemnor was served with the order issued by this Court.  That order was served on 10th August 2018. The tenant/Contemnor’s explanation is that on 2nd July 2018 he had already paid the plaintiffs sent upto December 2018.  He has annexed a receipt to that effect (annexture 5(e)) issued by the 1st plaintiff and whose authenticity is not in doubtMR OCHARO counsel for the tenant/Contemnor has submitted that this application is misdirected as it is aimed at a person who is not a party in this matter.  It is clear from the language of Order 40 Rule 3(1) of the Civil Procedure Rules that proceedings for breach of a Court order can be directed against “the person guilty of such disobedience or breach” so long as service of the order alleged to have been breached is proved as against such person and the disobedience is established as required in law.  Therefore, the fact that the tenant/Contemnor is not a party to this suit is really of no consequences.  What is important is that the order alleged to have been breached was directed to him and there is no doubt in my mind that as a tenant in the suit plot, this Court’s Orders issued on 19th July 2018 were directed to him among other tenants in the suit plot.

Having said so, it is clear from the record herein that the orders issued by this Court on 19th July 2018 were only served on the tenant/Contemnor on 10th August 2018 yet by 2nd July 2018, he had already paid the 1st plaintiff rent upto December 2018.  MR SICHANGI has submitted that the receipt for Kshs. 150,000/= rent is a “collusion to defeat the good intentions of a Court Order” because it was not produced during the hearing.  I don’t think that is a correct assessment of the facts in this case because at the time when this Court issued the orders subject of this application, the tenant/Contemnor was not yet a party to these proceedings.  He would therefore have had no reason to collude with the plaintiffs.  Similarly, how could the plaintiffs collude with the tenant/Contemnor to receive rent on 2nd July 2018 some two (2) weeks before my ruling was delivered on 19th July 2018 unless of course they sat with me to draft the said ruling and were therefore aware of the orders that this Court was going to make in the matter!

It is clear to me that the tenant/Contemnor cannot be held in contempt for something that he did long before the orders issued on 19th July 2018 had been served upon him.  I note from his Replying Affidavit that he has undertaken to honour the terms of that order and I must caution him to do so without fail in order to forestall any future proceedings seeking to cite him for contempt.

The up-shot of the above is that the plaintiffs Notice of Motion dated 17th September 2018 is dismissed with costs to the tenant/Contemnor.

Boaz N. Olao.

JUDGE

9th May 2019.

Ruling dated, delivered and signed in Open Court in Bungoma this 9th day of May 2019.

Mr. Milimo for Mr. Sichangi for plaintiff present

Mr. Murunga for defendant present

Mr. Ocharo for the tenant/Contemnor present

Boaz N. Olao.

J U D G E

9th May 2019