Kibunja & another v Kibunja & 5 others; Kihagi & 11 others (Interested Parties) [2024] KEELC 1484 (KLR)

Kibunja & another v Kibunja & 5 others; Kihagi & 11 others (Interested Parties) (Enviromental and Land Originating Summons 4 of 2021) [2024] KEELC 1484 (KLR) (20 March 2024) (Ruling)

Neutral citation: [2024] KEELC 1484 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyeri

Enviromental and Land Originating Summons 4 of 2021

JO Olola, J

March 20, 2024

Between

Duncan Ndegwa Kibunja

1st Applicant

Joyce Mwihaki Maina

2nd Applicant

and

Maria Nyokabi Kibunja

1st Respondent

Stephen Muriithi Kibunja

2nd Respondent

Zacharia Mutitu Kibunja

3rd Respondent

Paul Gathoga Kibunja

4th Respondent

Moses Ndiritu Kibunja

5th Respondent

Robert Maina Kibunja

6th Respondent

and

Isaac Ngatia Kihagi

Interested Party

Daniel Kagiri Gichamba

Interested Party

David Waihura Muriuki

Interested Party

Elijad Wachira Warui

Interested Party

Purity Gathigia Muriuki

Interested Party

Jane Wangui Warutere

Interested Party

Christopher Ngugi Mwaniki

Interested Party

Ceasere Gitonga Mwangi

Interested Party

Lucy Watare Warutere

Interested Party

Samuel Gitonga Nyahoro

Interested Party

Christopher Ngugi Mwaniki

Interested Party

Catherine Wandia Githinji

Interested Party

Ruling

1. By the Notice of Motion dated 9th October 2023, Duncan Ndegwa Kibunja and Joyce Mwihaki Maina (the Applicants) pray for an order to issue for the committal of the 3rd Respondent to Civil jail for a period not exceeding six (6) months or for attachment and sale of his property for disobedience of the Court Order issued on 23rd March, 2023.

2. The application which is supported by an Affidavit sworn by the 1st Applicant is premised on the grounds that:(i)There is a Court Order on record restraining the Respondents from interfering with the Applicants’ possession and use of the suit properties;(ii)In breach of the said order, the 3rd Respondent on 9th August, 2023 committed various blatant acts on the suit land to the detriment and prejudice of the Applicant;(iii)The 3rd Respondent is still persisting in the said acts despite complaints by the Applicants; and(iv)It is paramount to guard the dignity and authority of the Court that the orders sought are granted.

3. Zachary Mutitu Kibunja (the 3rd Respondent) is opposed to the application. In his Replying Affidavit sworn on 2nd November, 2023 and filed herein on 9th November, 2023 the 3rd Respondent avers briefly at paragraphs 3 to 5 thereof as follows:“3. That the acts I am alleged to have committed were done on the parcel of land L.R No. Nyeri/Naromoru/4025 which is under my name;4. That I have always been in possession of that parcel of land while the Applicant has been in possession of the adjacent parcel;5. That it is therefore not true that I have acted against the Court orders on record.”

4. I have carefully perused and considered the application as well as the response thereto by the 3rd Respondent.

5. By their application before the Court, the two Applicants have urged the Court to issue an order for committal of the 3rd Respondent to Civil jail for disobedience of orders issued by this Court on 23rd October, 2023. In support of their application, the 1st Applicant asserts at Paragraph 6 of his Supporting Affidavit that the 3rd Respondent has in breach of the said orders deployed earth movers to excavate at his compound.

6. In addition, the Applicants aver that the 3rd Respondent has started constructing walls for a permanent building touching the walls of the Applicants’ residential house and further that the 3rd Respondent has chased tenants away from the Applicants’ rental units claiming ownership of the same.

7. The 3rd Respondent does not deny committing the said acts. It is however his case that the acts complained of were done on the parcel of land known as L.R No. Nyeri/Naromoru/4025 which is under his name. It is the 3rd Respondent’s case that he has always been in possession of the said parcel of land while the Applicants are in possession of an adjacent parcel of land.

8. By a Notice of Motion application dated 19th July 2021, the Applicant had sought an order as follows:“(a)That the Respondents, their servants and/or agents be restrained by a temporary injunction from interfering with the Applicants’ possession and use of those parts of the original parcels of land L.R No. Nyeri/Naromoru/100 (since subdivided into parcels of land L.R No. Nyeri/Naromoru/4021 - 4046) pending the hearing and determination of this suit.”

9. When the said application came up for hearing on 23rd March 2021, the Respondents conceded to the same and the application was allowed in the said terms. By this present application, the two Applicants accuse the 3rd Respondent of disobeying the said orders by deploying earth movers to excavate the land, constructing a wall thereon touching the Applicants’ residential house and chasing tenants from their rental units.

10. According to the 3rd Respondent however, those acts were committed on L.R No. Nyeri/Naromoru/4025 which he contends was always in his name and possession. From a perusal of the order issued on 23rd March 2022, it was clear to me that L.R No. Nyeri/Naromoru/4025 is one of the sub-divisions arising from the original L.R No. Nyeri/Naromoru/100 and that the same was the subject of the orders issued on 23rd March, 2022.

11. The 3rd Respondent has not denied knowledge of the said order. By dealing with the subject property in the manner stated by the Applicants and conceded by himself, he was certainly acting in disregard of the orders of this Court.

12. As was stated in Econet Wireless Kenya Limited -vs- Minister for Information and Communications of Kenya Authority (2005) eKLR:“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by a Court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void.”

13. It follows that I am persuaded that there is merit in the Motion dated 9th October, 2023. In the circumstances, the 3rd Respondent is hereby found to be in contempt of this Court’s orders and is hereby directed to appear before this Court in person on 8th May, 2024 for mitigation and sentencing.

14. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 20TH MARCH, 2024. In the presence of:No appearance for the ApplicantsNo appearance for the RespondentsCourt assistant - Kendi……………………J. O. OLOLAJUDGE