Charles Asikowa Okolo v Emkos Company Limited [2015] KECA 27 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  MARAGA, AZANGALALA & KANTAI JJ.A)

CIVIL  APPLICATION NO. 69 OF 2014 (UR N0. 48/14)

BETWEEN

CHARLES ASIKOWA OKOLO....................................APPLICANT

AND

EMKOS COMPANY LIMITED..................................RESPONDENT

(An application for  stay and leave to harvest food crops, deteriorating and being wastedon

L.R No. 8994/20 I.R 57774 situated South East of Kitale Municipality pending theLodgingand

Hearing of an Intended Appeal from the Ruling of the High Court of Kenya

at Kitale (Obaga, J)Dated 22nd October, 2014

in

H.C.C.S. NO. 31 OF 2014)

*******************

RULING OF THE COURT

1. In an ex-tempore ruling we delivered on 20th November, 2014, we  dismissed  Charles Asikowa  Okolo's  Notice of Motion dated 24th October,  2014  and  undertook to  give  our reasons therefor  today. The following are therefore  our  reasons  for dismissing that application.

2.  For clarity and to put the matter  in context we need to give a summary of the background facts in this matter

3. On 25th October,  2005, the applicant  entered  into an agreement with  one  Benjamin  Nyamumbo Oonge (the  vendor)  for  the purchase  of  31 acres  of the  vendor's piece  of  land  situate in Kitale and known as L.R No.8994/20   (the suit land)  for Kes.6,080,000. It would appear that that transaction  fell through and in 2011, the applicant  filed Kitale HCCC No. 39 of 2011 against Benjamin Nyamumbo Oonge as  the 1st defendant, Agricultural   Finance   Cooperation  as  the  2nd defendant   and Emkos Company  Limited  as the 3rd defendant,  and sought  inter alia  an order  of specific  performance or in the  alternative  the refund of the purchase price paid to the vendor.  The applicant's claim for specific performance was dismissed but the alternative claim was granted.

4.  Despite that  judgment, the  applicant   who  had  already  taken possession of the  suit land refused to vacate it. Emkos Company Limited,  which  was apparently  the beneficial owner of  the suit land, filed  a suit in which  it sought  the applicant's eviction.  Contemporaneous  with the filing  of that suit, Emkos filed  an application  in which  it obtained  an ex-parte  order  of injunction on 29th January, 2014, restraining the  applicant from, in any way, interfering  with Emkos use of the suit land.  That order was confirmed  on 31st  March,  2014 after inter-partes hearing.

5.  Despite those clear orders  which  were duly  served  upon  him, the applicant ploughed the suit land and planted maize on it. On 7th October, 2014, in an application grounded on Sections 3, 3A and 63(e) of the Civil Procedure Act, the applicant sought leave of the court to enter the suit land and harvest the maize crop thereon.  Obaga, J. dismissed that application on 22nd October, 2014 thus provoking the present application.

6. In  the  application the  applicant  seeks  more or less  the  same orders as the ones he had sought in the High Court save that he now seeks in addition  an order staying the execution  of Obaga  J's  said  dismissal  order  of  22nd  October, 2014 pending  the filing, hearing and final determination of an intended appeal.

7. Basing his submissions  on  the  averments  in  the applicant's affidavit sworn on 24th October,  2014 in support of this application,  Mr. Mungao,  learned  counsel  for  the  applicant, argued that after delivery  of the High Court judgment  in Kitale HCCC No. 39 of 2011 on 29th August, 2013, the applicant  was not restrained from  remaining  or using the suit  land. He was restrained from doing anything on the land by the orders of 31st March, 2014 and 22nd October, 2014 after he had ploughed and planted maize on it. The applicant  should therefore  be allowed to  harvest  the  maize  crop  as the  respondent  has  no equitable right to it

8. The application was strongly opposed. Mr. Kiarie,  learned counsel for the respondent,  submitted that to allow the applicant to harvest  the maize crop  that he planted  in defiance  of clear court  orders,  will amount  to  assisting  him  to  disobey  court orders. He therefore urged us to dismiss this application with costs.

9. We have read the file and considered these rival submissions. It is not in dispute that the applicant knew of the court orders of 29th January, 2014 and  31st  March,  2014 because the rulings giving  rise to those  orders  were  not only delivered  in  the presence of his counsel but court orders were extracted from the rulings and duly served  upon the applicant. Despite that, in contumacious disobedience of those orders, the applicant ploughed and  planted  maize  on  the  suit  land. Having  been restrained by three orders, he now comes to us and seeks an order to permit him to enter the suit land and harvest his maize crop. It is not only an affront to the rule of law and an abuse of the court process but also against public policy for any court to, as  it  were,  assist  a  party  to  continue  disobeying  clear court orders.  Consequently we dismiss this application with costs to the respondent.

DATED and Delivered at Kisumu this 12th day of February 2015

D.K.MARAGA

................................

JUDGE OF APPEAL

F.AZANGALALA

.................................

JUDGE OF APPEAL

S.ole KANTAI

...............................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR