Jeremiah Onsare Soire v Daniel A. Sosi Maina & David Felix Omae [2015] KEHC 2794 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO. 149 OF 2008 (OS)

IN THE MATTER OF LIMITATION OF ACTIONS ACT, CAP 22 OF THE LAWS OF KENYA

AND

IN THE MATTER OF REGISTERED LAND ACT, CAP 300 OF THE LAWS OF KENYA

AND

JEREMIAH ONSARE SOIRE …………...…….....…………… APPLICANT

VERSUS

DANIEL A. SOSI MAINA ………………….…............1ST RESPONDENT

DAVID FELIX OMAE ……………………..…………… 2ND RESPONDENT

RULING

What is before me is the applicant’s application by way of Notice of Motion dated 2nd February 2015 in which the applicant is seeking an order to commit the 2nd respondent to civil jail for disobeying this court’s order for the maintenance of status quo that was given on 15th December 2008, and in the alternative, an order that the 2nd respondent be condemned to pay a fine of Kshs. 300,000 for the damage and wastage caused on LR No. West Kitutu/ Bomatara/1756 (hereinafter also known as “the suit property”) and for his property to be attached.

The application is supported by the applicant’s affidavit sworn on 2nd February 2015 in which the applicant has deposed that on 15th December, 2008 this court made an order that the parties herein do maintain the status quo in relation to the suit property pending the hearing and determination of this suit. The applicant  has stated further that he visited the suit property on 29th January, 2015 and found out that the 2nd respondent had sold the suit property to a third party who had put up a structure thereon and a fence contrary to the said order of status quo. The applicant has contended that court orders are not issued in vain and as such the 2nd respondent should be punished for disobeying the said order of 15th December, 2008 and stopped from doing any activity on the suit property until the suit herein is heard and determined by this court.

When the application came up for hearing on 23rd March 2015, Mr. Sagwe, advocate who appeared for the 2nd respondent asked for more time to take instructions from the 2nd respondent to enable him respond to the application. Following that request, the 2nd respondent was granted 14 days within which to file a replying affidavit to the applicant’s application.  When the matter came before me again on 10th June 2015 for hearing, the 2nd respondent’s advocates did not appear. They had also not filed a replying affidavit in response to the application pursuant to the leave that had been granted by the court on 23rd March, 2015. Since the hearing date was taken by consent, I allowed the applicant’s advocate to proceed with the application the absence of the 2nd respondent and his advocates notwithstanding. The applicant’s advocate Mr. Anyona relied entirely on the applicant’s affidavit in support of the application and urged the court to grant the orders sought.

The law on contempt of court is now fairly settled.  The onus was upon the applicant to prove the elements of contempt complained of.  The proof required is above a balance of probability but not beyond any reasonable doubt. See, the  holding in the Court of Appeal case of Mutitika –vs- Baharini Farm Ltd (1985) KLR 227 where the court stated that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt.  The applicant had a duty to prove that; the court did issue an order requiring the parties to maintain the status quo pending the hearing and determination of this suit, the order was extracted and served upon the 2nd respondent, the order had a penal notice warning the 2nd respondent that if he disobeyed the same he would be liable to be punished by the court and, that the 2nd respondent did disobey the said order after service thereof upon him.  See, the decision of Sergon J. in the case of Awadh –vs- Marumbu (No.2) [2004] 1 KLR 458. The applicant did not annex to his affidavit in support of the present application, a copy of the court order of 15th December 2008 which the 2nd respondent is accused of disobeying and the affidavit of service of the same upon the 2nd respondent. These omissions are sufficient to dispose of the applicant’s application. I wish however to consider the application on merit.

Upon perusal of the court file, I noted that the applicant had brought an application by way of Chamber Summons dated 7th November, 2008 on 11th November, 2008 in which he sought the following prayers:

“That this application be certified as urgent.

Pending the hearing and determination of the application a temporary injunction do issue against the 2nd respondent his agents and/or servants and/or family members, from entering into and/or interfering with and/or tilling and/or cultivating and/or erecting any structures and/or planting any crops and/or alienate a portion of land measuring 0. 054ha in land parcel West Kitutu/Bomatara/1756.

Pending the hearing and determination of this suit, a temporary injunction do issue against the 2nd respondent, his agents and/or servants and/or family members from entering into and/or interfering with and/or tilling and/or cultivating and/or erecting any structures and/or planting any crops or trees and/or alienating a portion of land measuring 0. 05ha in a land parcel No. West Kitutu/Bomatara/1756.

That the costs of this application be provided for”.

The said application came up for hearing before Musinga J. (as he then was) on 25th November, 2008 in the presence of the advocates for both parties when  the court made the following order:-

“The application dated 7th November, 2008 will be heard on 15th December, 2008 at 9. 00a.m. The status quo to be maintained”.

When the application came up for hearing on 15th December, 2008, Musinga J. did not sit and the matter was placed before the deputy registrar, Kimutai SRM for directions. The said deputy registrar directed that the application be heard on 17th December 2008 before the High court and that the status quo be maintained. I doubt whether the deputy registrar had powers to extend the orders of status quo that were made by Musinga J. on 25th November, 2008. The issue was however not raised before me and I think that the less said on the same the better. After all, court orders whether irregular or not have to be obeyed unless they are varied or set aside. See, the case of Hadkinson vs. Hadkinson [1952]All ER 567 at 569. It is this order of status quo that was made by Musinga J. on 25th November, 2008 and extended by Kimutai SRM on 15th December, 2008 that the applicant claims to have been disobeyed by the 2nd respondent.

The applicant has claimed that in breach of the said order of status quo, the 2nd respondent has sold the suit property to a third party who has put up a structure thereon and fenced off the same.  The applicant has annexed to his affidavit in support of the application copies of photographs said to have been taken on the suit property. The photographs show some iron sheet structure put up on an otherwise vacant parcel of land and a barbed wire fence mounted on wooden poles around the said structure. The applicant has contended that the said structure and fence has been put up by the 2nd respondent or by a third party with the consent of the 2nd respondent.

If indeed these activities have been carried out by the 2nd respondent after the order that was made on 25th November, 2008 that required the parties to maintain the status quo then the 2nd respondent is in contempt of court. This court cannot however find the 2nd respondent guilty of such contempt unless it satisfies itself that the said order was served upon the 2nd respondent or that the 2nd respondent was aware of the same. The applicant has failed to prove either of these scenarios. Although the order seems to have been breached, the conditions for punishing the contemnor have not been met.

In the circumstances, the applicant’s application dated 2nd February, 2015 must fail. That being my view of the matter, the said application is dismissed with no order as to costs.

Delivered, Datedand Signed at Kisii this 27th day of August, 2015.

S.OKONG’O

JUDGE

In the presence of:

Mr. Anyona   for the applicant

Mr. Abobo   for the respondents

Mr. Omwoyo   court clerk

S.OKONG’O

JUDGE