Elizabeth Kanini Musyoka v Benard Kilonzo Mutisi & Christine Mwikali Munywoki [2018] KEELC 186 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC NO. 354 OF 2017(O.S)

ELIZABETH KANINI MUSYOKA.........................................................APPLICANT

VERSUS

BENARD KILONZO MUTISI......................................................1ST RESPONDENT

CHRISTINE  MWIKALI MUNYWOKI.....................................2ND RESPONDENT

RULING

1) There  is before  me a notice  of motion  application expressed  to be brought under sections 1A, 13, 3A of the Civil Procedure Act and Order 40 Rule 3 of Civil Procedure  Rule for orders:

1. Spent

2. That the Respondents herein becited for contempt of the orders of this honourable courtissued on 19/12/2017 and they be subsequently imprisoned for a period not exceeding six months.

3. That the costs of this application be borne by the respondent in any event.

2) The application is predicated on the grounds on its face and is supported by the supporting andfurther affidavits of Elizabeth Kanini Musyoka, the Applicant herein, both sworn on 5th March, 2018 and 10th April, 2018 respectively.

3) The application is opposed by the first and the second Respondents who filed their respective replying affidavits  on the  15th May, 2018 and 19th March, 2018. The replying affidavit by the first Respondent was sworn atWote on the 14th May, 2018 while that of the second Respondent  was sworn at Nairobi on the 14th March, 2018.

4) On the 17th May, 2018 the court directed   that the application be disposed off by way of written submissions. The Applicant filed her submissions on the 4th July, 2018 while the second Respondent filed hers on the 26th October, 2018.  The first Respondent filed his submissions onthe  20th October, 2018.

5) The Applicant has deposed in paragraphs 3 to 6 of her replying affidavit that the orders issued on the 19th December, 2017 and marked EKMI-1 were served upon KCB bank on the same date.

6) That theorders required the Respondents to jointly or severally transferto his account accumulative sum of Kshs. 2,166,660/= from the funds held at KCB Wote account NO. [..] and [...].  That the Respondents have failed to comply with the said ordersissued on the 19th December, 2017 and have instead breached the court’s order.  That as a result of the said contempt, the Applicant stands to suffer loss. In her  further  affidavit, the  Applicant  has deposed in paragraphs 4 and 5 that the Respondents were   duly served  with the court’s order  dated  19th December, 2017 and the  one dated 5th March, 2018 as per a copy of the   affidavit of service  marked as EKM1.

7) That the second Respondent received thecourt orders and application on her own behalf and on behalf of the first Respondent who is her husband.

8) The Applicant termed the second Respondent’s affidavit of service sworn on the 19th March, 2018 as hollow and defective in law.

9) The second Respondent in her replying affidavithas deposed in paragraph 3 that she is not aware of any court order alleged to have been served on her regarding theissues in this matter.

10)   The second Respondent has  further  deposed in paragraph 4 of her replying  affidavit  that when she  appeared in court on the 5th December, 2017 the matter was set down for hearing interpartes on the 17th January, 2018 on which  dated they were informed that the matter had been finalized.  She deposed in paragraph  6 that she did not sign any document and that the signature appearing  on the consent filed  in  court is not hers and thus it is a forgery and ought to be struck out of the proceedings.

11)   The first Respondent has deposed in paragraph 9 of his replyingaffidavit that he too was never served with the orders issued on the 19th December, 2017 and that he only became aware of it when the application was brought to court. He has also deposed in paragraph 11 and 12 that he did not have the capacity/locus and or authority to enter into any consent especially the one dated 19th December, 2017 and asked the court to set aside.

12)   I have read the application, the supporting and further affidavits as well as the replying affidavits by the two Respondents and the submissions that were filed by the counsel on record.  In my viewthe only issue for determination is whether or not the two Respondents were served with the order issued on 19th December, 2017.  The Applicant contends that the Respondents were served with the order dated 19th December, 2017 as can be seen from the affidavit of service annexed to thefurther affidavit and marked as EKM1. The  affidavit  of service in question refers to the copies  of the order which were issued prior to 19th December, 2017and which orders were  received by the process server on the  22nd November, 2017 and served upon the second Respondent  on the same day.  There is nothing in the said affidavit of service that shows that the orders of the 19th December, 2017 wereever served upon the two Respondents or even Kenya Commercial Bank Wote Branch itself.  That being the case, the two Respondents cannot be said to have disobeyed any court order in order for them to be in contempt of court.

13)   In my view, the application dated   5th March, 2018 and filed in court on even datelacks merit.  In the circumstances, I hereby dismiss the same with costs to the two Respondents.

SIGNED, DATED and DELIVERED at MAKUENI this 26TH day of NOVEMBER, 2018.

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

MsKyalo for the Plaintiff/Applicant

Mr. Mutunga holding brief for Munyasia for the 2nd Defendant/Respondent

MBOGO C.G, JUDGE

26/11/2018