Kasembeli Sanane v Martin Muli Alias Fredrick Sanane , Munasi Sitati, John Nyongesa George Cheteka & Peter Sanane Mabonga [2013] KEHC 5772 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENTAL CASE  NO. 32 OF 2013

KASEMBELI SANANE.................…………………………..........……….. PLAINTIFF

VERSUS

MARTIN MULI alias FREDRICK SANANE ………………..……..1ST DEFENDANT

MUNASI SITATI…......................................................................2ND TH DEFENDANT

JOHN NYONGESA….......................................................................3RDTDEFENDANT

GEORGE CHETEKA…......................................................................4TH DEFENDANT

PETER SANANE MABONGA …......................................................5TH DEFENDANT

RULING

By a notice of motion dated 10th April 2013 brought under Order  51 rule 1 and order 40 rule 3(1) of the Civil Procedure Rules, the applicant urged  this court  to  detain the defendants/respondents in prison for a term not exceeding six months.

According to the applicant, the respondents have ignored the order of this court issued on 21st February 2013 served on them and  are currently wasting and building houses on the land.   He annexed photographs of the land being tilled.

Mr. Areba submitted that the respondent has  admitted service of the order at paragraph 11 of the replying affidavit. The application is supported by an affidavit  of Kasembeli Sanane – applicant.  He averred   that the order was served  on 22nd February 2013.  he prayed for the application to be allowed.

Mr. Sichangi on behalf of the  respondents opposed the application.  He submitted  that the burden of proof for contempt proceedings is beyond reasonable doubt. The photographs annexed are not enough proof  as the person who  took them  is not known; when and where they were taken is also unknown.  He submitted  that the 2 – 5th  respondents are not living on this land.

It is the   respondents further submission that the 1st defendant took possession of the  suit land in May 2012 before this suit commenced.  That the applicant served the pleadings, order and present application for contempt together  so as to ambush them. He also  said that the applicant did not  obtain leave before commencing these proceedings.  He urged the court to  dismiss the application with costs.

The court   has also  taken upon itself to read through the file  to  try and get the affidavit of service referred  to in paragraphs 4 of the supporting affidavit.  None was annexed and none is available in  the  court file. In the application of Jacob Zedekiah Ochiro  & another vs. George Ara Okombo Civ. Appl. No. 36 of 1989 (see Odunga's digest on  Civil case law & procedure. The court of appeal stated that “no order requiring  a  person to do or  abstain from doing any act may be enforced  by contempt  unless a copy of the order has been personally served and endorsed with a notice  informing him that if he disobeys the order, he is liable to the process of execution.”No proof of service has been shown to this court and on this account the application  must fail.

Secondly, as put  by Mr. Sichangi, proof of contempt must be beyond reasonable doubt (see Odunga's digest at page 275 paragraph 671).

what the applicant did is to annexe photographs which are undated.

There is no affidavit to verify who took them and where they  were taken.

There is  also no evidence of whether all the defendants or part of the defendants are tiling the land. Th 2nd – 5th defendants, it was submitted  do not  stay on the land.  The applicant did  not swear any further affidavit to clarity to this court  who is exactly living on the land amongst the defendants.  The applicant has therefore failed to prove beyond reasonable doubt that the respondents have breached the order on 21st February 2013.  in any  even one of the photos  shows grown bananas  and vegetables.  This court takes  judicial notice of the fact that the bananas take time to mature and cannot be the  size as seen from the photos within  a period of a month.  On account of proof beyond  reasonable doubt, the application also fails.

I therefore find this application as lacking in merit and proceed to  dismiss it  with costs   to the respondent.

RULING  DATED, SIGNED, READ and DELIVERED in open court this     5th   day of June  2013.

A.OMOLLO

JUDGE.