James Maruti v Johnson Simiyu Macheso & Joel Wafula [2017] KEHC 2920 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

LAND & ENVIRONMENT CASE NO. 128 OF 2013.

(ORIGINALLY KIMILILI SENIOR RESIDENT MAGISTRATE’S COURT CIVIL CASE NO. 75 OF 2010)

JAMES MARUTI……….………………………PLAINTIFF/RESPONDENT

VERSUS.

JOHNSON SIMIYU MACHESO…………1ST DEFENDANT/APPLICANT

JOEL WAFULA…………………….……...2ND DEFENDANT/APPLICANT

RULING.

[1]. The Notice of Motion herein was filed under Sec. 5 of the contempt of Court Act 2016 and under Sec. 1A 1B and 3A of the Civil Procedure Act and Order 51 Rules 1 and 4 of the Civil Procedure Rules.  The applicant prays among other things that this court do cite the plaintiff/respondent for being in contempt of court of a valid decree of this honourable court dated 13/5/2014 and issued on 19/5/2015 in this matter and that the plaintiff/respondent be condemned to pay a fine and/or be imprisoned as the court deems fit, the application is based on the fact that the Court entered Judgment for the 1st defendant against the plaintiff whereof the orders of eviction were entered against the plaintiff.  A decree was issued on 19th May 2014 which was duly served on the plaintiff.  The defendant was evicted on 12/09/2014.  That the Plaintiff moved the court on 25/9/2015 for a stay of execution and the application was dismissed by the Court.  That in contempt of the said orders of the court the plaintiff trespassed into the said land on 16/1/2017 and erected permanent buildings thereon.  The respondent argues that he has been unable to access and make use of his land due to the defendants hostility.

[2]. The plaintiff in his replying affidavit said that he owned land contained in title number Bokoli/Chwele/1329 and that he still had the original title deed.  He stated that he had been advised by his advocate on record that since he had been evicted from the land parcel, he should stay away and seek a different remedy against the defendants herein.  His advocate argued that the respondents tone is one of remorse.  Counsel admitted the respondent was evicted on 2014 and that he came back on 25/9/2016.  He conceded that the house shown was built during the pendency of this application.  His counsel argued that respondent was misadvised.  The counsel sought 60 days for his client to move out and vacate for the second time.

[3]. There is no doubt that the Plaintiff/Respondent was evicted out of the suit land on 12/9/2014.  After eviction he brought an application for  stay of those orders and his application(s) were dismissed.  He was out of the land by 12/09/2014.  He came back on 16/1/2017 after a period over 2½ years.

There was absolutely no excuse for his conduct.  He has deliberately disobeyed this court orders.  The excuse that he was misadvised by his counsel is not convincing.  His prayers that he needs 60 days to move out of the land is an abuse of the court process since he was evicted, stayed away for over 2½ years then he decided to come back to the suit land on his own volition.

[4]. This court finds him in contempt of court.  The court orders that he should  be bonded to appear in court to show course why he should not be punished for contempt of court as the law requires.

Ruling read in Open Court before Counsels for the Parties.

DATED at BUNGOMA this  3rd   day ofOctober,   2017.

S. MUKUNYA

JUDGE

In the presence of:

Court Assistants:  Joy/Chemutai

Miss Wanjala for Were for the Plaintiff