Benjamin Kasee Munguti v Felix Kioko Kisalu,James Kilonzo,Raphael Kamuti,Mwau Kyoa,Joseph Mulaa,Timothy Mwina,Peter Steel,Isaac Basilo,Nyamai Wambua,Telesia Kilonzo,Leah Mutavi & County Government of Machakos [2017] KEELC 982 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO.  116 OF 2016

BENJAMIN KASEE MUNGUTI....................................PLAINTIFF

VERSUS

FELIX KIOKO KISALU.......................................1ST DEFENDANT

JAMES KILONZO..............................................2ND DEFENDANT

RAPHAEL KAMUTI ...........................................3RD DEFENDANT

MWAU KYOA ......................................................4TH DEFENDANT

JOSEPH MULAA ...............................................5TH DEFENDANT

TIMOTHY MWINA ..............................................6TH DEFENDANT

PETER STEEL.....................................................7TH DEFENDANT

ISAAC BASILO....................................................8TH DEFENDANT

NYAMAI WAMBUA..............................................9TH DEFENDANT

TELESIA KILONZO ..........................................10TH DEFENDANT

LEAH MUTAVI....................................................11TH DEFENDANT

COUNTY GOVERNMENT OF MACHAKOS....12TH DEFENDANT

RULING

1. In the Application dated 24th May, 2017, the Plaintiff wants the Defendants to be committed to six (6) months imprisonment for disobeying the orders of the court of 9th February, 2017 and issued on 24th February, 2017.

2. The Application is premised on the grounds that the contemnors were duly served with the court orders of 9th February, 2017; that the conduct of the contemnors has brought the honour and dignity of the court into disrepute and that the Respondents should be committed to jail.

3. In his Affidavit, the Plaintiff has deponed that even after being served with the order of the court, the Defendants have continued to uproot his banana plants besides cultivating maize on the suit land; that they have continued to cut trees, burn charcoal and carry out other acts of wastage on the land and that the Defendants have also demolished his house and chased him from the suit land.

4. Although the Defendants were served with the Application, they did not respond to it.

5. The Plaintiff’s advocate appeared before me on 18th September, 2017 and urged that the Application should be allowed.

6. The record shows that on 7th February, 2017, this court issued an order restraining the Defendants or their agents from “interfering, trespassing, cutting trees, alienating, wasting, damaging or interfering with the Plaintiff’s quiet use and enjoyment of land parcel number 186 located in Mwea Farms Company Limited pending the hearing and determination of the  suit.

7. The Affidavit of the process-server sworn on 16th May, 2017 shows that the 1st – 11th Defendants were served with the order of the court on 9th March, 2017.

8. However, despite being served with the order, the Defendants have continued to disobey it by cutting down trees, burning charcoal and even demolishing the Plaintiff’s house.

9. The Plaintiff has annexed on his Affidavit the acts of wastage of the suit land by the Defendants including the debris that remain after the demolition of his house.

10. It would appear that the Defendants herein have no respect for the rule of law. Indeed, their disdain for the rule of law is exemplified by the fact that they did not oppose the Application dated 17th August, 2016 which gave rise to the impugned orders and the current Application.

11. As was held in the case of Commercial Bank of Africa Limited vs. Isaac Kamau Ndirangu (1991) eKLR, it is only by acting swiftly and firmly when an order of the court is flouted that the dignity of the court can be held.

12. Considering that the Defendants have not rebutted the Plaintiff’s disposition that they disobeyed the orders of this court, and in view of the photographic evidence of their contemptuous acts, I find and hold that the 1st- 11th Defendants, jointly and severally, disobeyed the orders of this court made on 9th February, 2017.

13. Having found the 1st – 11th Defendants to be in contempt of the orders of this court, I shall, which I am obliged to do, proceed to punish the said Defendants after I have heard them in mitigation.

14. Considering that the 1st – 11th Defendants are not in court, I shall make the following order:

a. The officer commanding Kithimani Police  Station do arrest the 1st – 11th Defendant and arraign them in this court within fourteen (14) days of the date of this Ruling for the purpose of mitigation and sentence.

b. The 1st – 11th Defendants to pay the costs of the Application.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 9TH DAY OF NOVEMBER, 2017.

O.A. ANGOTE

JUDGE