ESTHER JEPKEMEI SUGUT V SELLY JEMUTAI, KILIBWONI LAND DISPUTES, NANDI DISTICT LAND REGISTRAR TRIBUNAL & ATTORNEY GENERAL [2006] KEHC 3203 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET

Civil Suit 96 of 2004

ESTHER JEPKEMEI SUGUT ……………………………………..………………………………… PLAINTIFF

VERSUS

SELLY JEMUTAI ……………………………………………………………………………… 1ST DEFENDANT

KILIBWONILANDDISPUTES TRIBUNAL ………………..........................……………… 2ND DEFENDANT

THE NANDI DISTICT LAND REGISTRAR ………………..........................……………… 3RD DEFENDANT

THE ATTORNEY GENERAL …………………………………….....……………………… 4TH DEFENDANT

R U L I N G

Esther Jemutai Sugut, Selly Jemutai and the Attorney General who are the plaintiff, the 1st and the 4th defendants herein respectively recorded the following consent order in this court on 16/3/2005.

“(a)  The status quo namely, the 1st Defendants occupation of NANDI/LESSOS/452 and 469 be preserved pending the hearing and final determination of this suit.

(b)There be a stay of execution of the decree issued in Kapsabet PMCC Land Case 39/2001 pending the hearing and determination of this suit.

(c)The Plaintiff to file a reply to defence and defence to counterclaim as well as a further affidavit within the next 14 days.

(d)The 1st defendant to file a reply to the defence to the counter claim within 7 days from the date of service.

(e)Both the Plaintiff and the Defendant will not commit any acts of wastage of the land parcels in question.”

The said consent order followed an application by Selly Jemutai, who had prayed for an order to restrain Esther Jemutai Sugut by way of a temporary injunction either by herself, servants, employees, and or agents from trespassing onto,  cultivating, alienating, wasting and or in any other way dealing with land parcels NANDI/LESSOS 452 and NANDI/LESSOS/469 (hereinafter referred to as “the subject parcels”) pending the hearing and determination of her application and thereafter pending the hearing and determination of her counterclaim (sic).

Selly who is now back to court seeks for an order to have Esther committed to civil jail for six months on the basis of the grounds that despite the court having ordered that status quo be maintained, Esther has either personally or through her servants and agents flagrantly and without any reasonable cause and or justification disobeyed the order, which acts are in Selly’s contention, contemptuous and for which Esther ought to be punished accordingly.

In instances where an order is issued by the court it is imperative that it be clear and free from any sort of ambiguity, otherwise it would be difficult to enforce and in which case it would be an uphill task to prove that a party who it is claimed has flouted it, is in contempt of court. This standard would of necessity apply to orders which require that the status quo be maintained.

It is for that reason that I find that it is necessary that I establish what the status of the parties vis a vis the subject parcels was at the time when they entered into the aforementioned consent order. In view of the fact that no evidence has been adduced in this matter, I can only refer to the pleadings, it being trite that parties are bound by their pleadings and in which case, I would not expect any deviation there from.

A look at the plaint, reveals that at the time when Esther filed this suit in July 2004. she acknowledged the fact that Selly was in occupation of the subject parcels which she was then cultivating. Esther therefore sought an order for eviction, and in support of her application for injunction to issue against Selly, which she had filed simultaneously with the plaint, she had deponed that “the 1st defendant has now moved into the disputed parcels of land and is presently occupying my house erected on parcel No. andi/Lessos/469 ……………… That further, the 1st defendant with the assistance of her agents has been cultivating the said parcels of land ………”

Though Esther alleged that Selly’s action amounted to trespass, the latter who had obtained a decree in her favour over the subject parcels, following a decision by the Kilibwoni land Disputes Tribunal, claims that she resides on the parcels as of right.

With that background, and bearing in mind the fact that the aforementioned consent order is still on record, and is still valid, the only logical conclusion would be that it is Selly who was in occupation prior to the institution of this suit, and who was in occupation at the time when the consent order was recorded. In my mind that was the status that should have been maintained.

In view of the above, I find that it should have been Selly who should have remained in occupation of the subject parcels pending the hearing and determination of the suit, any interference with the said parcels by Esther who has neither denied having cultivated a portion of 9 acres of the subject parcels in 2005, nor has she denied having been served with the penal notice, amounts to contempt of court and for which reason, I do order that she serves two months imprisonment.

Dated and delivered at Eldoret this 14th day of March 2006.

JEANNE GACHECHE

JUDGE

Delivered in the presence of:

Mr. Magare for the 1st respondent, Mr. Were for the applicant

No appearance for the 4th respondent