KISEKEM LIMITED v MICHAEL KIPKERING CHERWON,THE COMMISSIONER LANDS,THE CHIEF LAND REGISTRAR & THE ATTORNEY GENERAL [2012] KEHC 5301 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL CASE NO. 106 OF 2006

KISEKEM LIMITED...............................................................................PLAINTIFF

VERSUS

MICHAEL KIPKERING CHERWON..........................................1ST DEFENDANT

THE COMMISSIONER LANDS................................................2ND DEFENDANT

THE CHIEF LAND REGISTRAR................................................3RD DEFENDANT

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

RULING

The application before this court is a Notice of Motion dated the 20th September, 2011 made under Order 40 Rule (3) and order 51 Rule (1) of the Civil Procedure Rules. The application is supported by the affidavit of WILLY KAMUREN.

A brief summary of the matter is that the Plaintiff/Applicant sought and obtained injunctive orders against the 1st Defendant MICHAEL KIPKERING CHERWON on the 8th June, 2011.

The injunctive orders were to restrain the 1st Defendant/Respondent from conducting any construction on the suit land. Despite the court injunction the 1st Defendant/Respondent his agents, servants and employees allegedly deliberately and continuously carried on with the activities that were clearly contemptuous of the court order.

On the 2nd November, 2011 the court gave directions that the Process Server, the Plaintiff/Applicant and the 1st Defendant/Respondent be in attendance on the 16th November, 2011 and that evidence be taken viva voce from the above mentioned persons to ascertain whether the 1st Respondent was in contempt of a court order.

The matter came up for hearing on the 16th November, 2011 when the applicant opted not to call the Process Server. It transpired that the Process Server who effected service was the same advocate who had conduct of the application before this court and he was therefore unable to testify.

The 1st Defendant/Respondent gave evidence under oath. Stated that he stays mostly in Nairobi and on the 10th June, 2011 he did not meet the Process Server cum advocate of the High Court namely Mr. Joseph Songok. He said he was not aware of the court order dated 8th June, 2011, and that neither his secretary nor construction supervisor had relayed any information to him about the court orders.

He got to know about the court order through his advocates on record, when the advocates told him that the matter was coming up for hearing and that he needed to swear an affidavit in reply.

He states that upon being informed of the position he stopped construction.

His prayer was that he be discharged as he was not in contempt of the court order dated 8th June, 2011.

Counsel for the applicant chose not to testify on the issue of personal service nor was the applicant called upon to testify.

The issues for determination before this court are:-

i)Was the 1st Respondent aware of the Court Order

ii)Was of the Personal Service of the court order or Penal Notice effected on the 1st Respondent.

iii)Was the 1st Respondent in disobedience of an order of injunction given by the court on 8th June, 2011

iv)Whether the 1st Respondent is liable to be punished for contempt of the Orders of the Court.

The 1st Respondent gave evidence on oath that he was unaware of the Court Order of 8th June, 2011.

I shall give the 1st Respondent the benefit of doubt as he stood his ground during cross-examination and maintained that he was unaware of the Court Order and the persons who were served were not his employees and were unknown to him.

The authority annexed by Counsel for the applicant JUSTUS WANJALA KISIANGANI & 2 others -VS- GTY COUNCIL OF NAIROBI & 3 OTHERS [2008]e KLR can be distinguished from the case herein. In the above authority the officials of the City Council of Nairobi were all along aware of the ongoing litigation and the court orders. They deliberately disobeyed court orders on the assumption that they would escape liability on technical grounds that they had not been served with the said court order.

Upon evaluation of the case before me I am satisfied that the 1st Respondent was privy to of the case but was not aware of the court order.

Lord Denning in the case of RE: BRAMBLEVALE LIMITED [1969] 2 ALL E. R 1062 at page 1068 states and I quote:

“a contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved.To use the time honoured phrase, beyond reasonable doubt”

It has been held and argued - Refer to MUTITKA -VS- BAHARINI FARM (1982 - 88)/KAR that the standard of proof in contempt proceedings is not as high as envisaged by LORD DENNING but that the standard of proof must be higher than that of on a balance of probabilities.

From the evidence adduced in court by the 1st Respondent, I find that said Respondent was not aware and was never personally served with the court order and Penal Notice and in the absence of evidence to the contrary, the 1st Respondent cannot be committed for contempt of Court.

The application is hereby dismissed.

Costs shall be in the cause.

DATED AND DELIVERED AT ELDORET

THIS 18TH DAY OF JANUARY, 2012

A. MSHILA

JUDGE