Emmanuel Oduor Nanjira v John Walobwa Rajira [2014] KEHC 4562 (KLR)

REPUBLIC OF KENYA.

IN THE HICH COURT OF KENYA AT BUSIA.

ELC. NO. 36 OF 2014 (OS).(FORMERLY HCC. 26/2008)

EMMANUEL  ODUOR NANJIRA ………………..  PLAINTIFF

-VERSUS-

JOHN WALOBWA RAJIRA ………………….. DEFENDANT.

R U L I N G.

EMMANUEL  ODUOR NAJIRA, hereinafter  referred to as the Applicant,  filed the Notice of Motion  dated 8th  September, 2012 through  M/S. Gabriel  Fwaya  advocates, against  John Walobwa  Rajula, hereinafter  referred to as the Respondent.  The  Applicant  prays for the Respondent to be arrested and detained for six months  for disobeying  or breaching  the court order of 2nd November, 2010.  He also  prays for  costs. The  application is supported  by the affidavit of Emmanuel Oduor Nanjira sworn on 8th September, 2012 in which  he inter alia states:

That  this suit was concluded through  the consent order of 2nd November, 2010 and an order of permanent injunction  issued  against Respondent  from interfering with land parcel  Marachi/Elukhari/3053.

That  the consent order was extracted and copy served on the Respondent on 28th June, 2012.

That  on  29th  June, 2012, the  Respondent  forcefully  ploughed  the  said  land and later planted sugarcane.

That  efforts to stop the Respondent  from interfering with the said land have failed and hence this application.

The application was served  on the Respondent but to date he has not filed any reply.  On 22. 10. 2013, the  court issued warrant  of arrest for  the Respondent.  He was duly arrested and presented to the Deputy Registrar  on 2/12/2013 and before this court on 3rd December, 2013 when  he was released  on bond on  application  of his advocate pending the hearing of the application.  The  application was finally heard on 13th May, 2014  and even though the Respondent  had not filed any replying papers, the court allowed him to be heard after rejecting his  application for adjournment.

The  Respondent conceded that he continued using the suit land even after the order of 2nd  November, 2010 was issued claiming  he had planted sugarcane on it.  He  said he was last  on the land  in January, 2014  and indicated he will not go back to the land  as he has now understood  the terms of the order of 2nd November, 2010.

Having  heard Mr.  Fwaya advocate for  the Applicant on one part and the Respondent on the other part, and  having carefully  considered  the contents of the supporting  affidavit sworn on 8th  September, 2012, the court finds as follows;

That this suit was commenced  by the Applicant through  the plaint dated 25th  August, 2008.

That the  main  prayer in the suit is in paragraph 12(a)  that  an order of permanent injunction be issued restraining  the Respondent and any other person claiming  from him from interfering  with Applicant’s  use of Marachi/Elukhai/3053.

That the  Respondent  filed a defence  dated 22nd  December, 2008  through M/S. Ouma –Okutta  Associates and Advocate.

That on 2nd November, 2010 in the presence  of Applicant, Respondent  and  their advocates, the Applicant’s  claim was allowed  in terms of  prayer (a)  with 50% of the costs.

That the  consent order was extracted on  22. 12. 2011  and served on the Respondent on 28. 6.2012.

That  the Respondent  has been cultivating sugarcane  on the suit land as confirmed by himself contrary to the order of 2nd November, 2010 which  amounts  to disobeying  the said  court order.

That the Respondent has not  given any reasons why he is unable to comply with the court order that was entered by consent..

From  the foregoing,  the court finds that  the Applicant  has  established  that the  Respondent  has been ploughing  and cultivating sugarcane   on the said land  without his  consent.  This amounts to disobeying the court order of 2nd November, 2010 and  under Order 40 Rule 3  of the Civil Procedure Rules  and section  63 of the Civil Procedure Act, the  Respondent  may have his properties attached  and subsequently  sold and   detained in prison for a term not exceeding  six months. The Applicant has applied that Respondent  be detained  for six months for disobeying the  court order and the Respondent  has not given any plausible reason for not obeying the court order of 2nd November, 2010.  The  Respondent  has not challenged the said order in accordance  with the laid down  legal provisions  and the court cannot  fold its hands  when a party is disobeying its orders. The application  is granted and the Respondent   namely John Walobwa  Rajira is hereby detained  at the prison for six months  under order 40 rule 3(1) of Civil Procedure Rules  for disobeying the order of 2nd November, 2010.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED  ON 17th DAY OF   JUNE , 2014

IN THE PRESENCE OF ; Applicant, Respondent  and Mr. Fwaya  for Applicant.

JUDGE.