Koech & another v Ethics & Anti-Corruption Commission & 3 others; Koech (Objector); Gathogo t/a Valley Auctioneers & 5 others (Interested Parties) [2022] KEHC 11909 (KLR)

Koech & another v Ethics & Anti-Corruption Commission & 3 others; Koech (Objector); Gathogo t/a Valley Auctioneers & 5 others (Interested Parties) (Anti-Corruption and Economic Crimes Civil Suit 18 of 2016) [2022] KEHC 11909 (KLR) (Anti-Corruption and Economic Crimes) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11909 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Civil Suit 18 of 2016

EN Maina, J

May 19, 2022

Formerly HCCC No. 280 Of 2010

Between

Davy Kiprotich Koech

1st Applicant

Dustan Magu

2nd Applicant

and

Ethics & Anti-Corruption Commission

1st Respondent

David Yego c/o Mutai Hardware Stores Limited

2nd Respondent

Juliuus N Muraya

3rd Respondent

Twalib Abdallah Mbarak, The Secretary /Chief Executive Officer, Ethics and Anti-Corruption Commission

4th Respondent

and

Nancy Koech

Objector

and

Samuel Mutahi Gathogo t/a Valley Auctioneers

Interested Party

Mutai Hardware Stores Limited

Interested Party

Peter Kiplangat Korir

Interested Party

David Kipruto Ronoh

Interested Party

Jackline Jematia Kipkato

Interested Party

Peter Ronoh Ng’ochoch Kiprotich

Interested Party

Ruling

Introduction 1. Before the Court are two Notice of Motion applications by the 1st Defendant/Applicant, Davy Kiprotich Koech dated September 3, 2019 and November 27, 2019 respectively. In the application, dated September 3, 2019 the applicant challenges the auction of his properties which he alleges was fraudulently conducted with the aim of divesting him of the properties while in the second application which flows from the first, he cites the respondents therein for contempt of court for failing to adhere to the Orders of Onyiego J issued on October 1, 2019 to the effect that status quo be maintained pending the determination of the initial application dated September 3, 2019.

Application Challenging the Public Auction of Properties 2. In the application dated September 3, 2019 the applicant sought the following orders:“i.Spent.ii.Pending the hearing and determination of this application and the main suit herein, the Honorable Court be pleased to issue an order of injunction restraining the Plaintiff and Samwel Mutahi Gathogo T/A Valley Auctioneers or any other firm of auctioneers appointed by the plaintiff, their agents, servants, employees, assigns or howsoever from in any way dealing with, disposing of, selling or otherwise interfering with the title of the properties to wit, Kericho Municipality Block 4/2 measuring 1. 16ha; Kericho Municipality Block 4/3 measuring 0. 114ha; Kericho Municipality Block 4/4 measuring 0. 5363ha; Kericho/Kapsuser/1962 measuring 1. 62 ha; Kericho/Kipchimchim/3005 measuring 1. 2 ha; and Kericho/Kipchimchim/3006 measuring 0. 8 ha (the subject properties)iii.Pending the hearing and determination of this application and the main suit herein, the Honorable Court be pleased to set aside the purported sale which took place on April 29, 2019 which purported to sell properties to wit Kericho Municipality Block 4/4 measuring 0. 5363 ha; Kericho/Kapsuser/1962 measuring 1. 62 ha; Kericho/Kipchimchim/3005 measuring 1. 2 ha; and Kericho/Kipchimchim/3006 measuring 0. 8 ha (to David Kiprutoh Ronoh, Mutahi Hardware Stores Limited, Peter Kiplangat Korir, Jackline Jematia Kipkato and Peter Rono Ng’ochoch Kiprotich respectively, the Interested Partiesiv.The Honourable Court be pleased to order that the licence of Samwel Mutahi Gathogo T/A Valley Auctioneers be revoked forthwith.v.The Honourable Court be pleased to exercise its disciplinary powers vested under section 56 of the Advocates Act and do mete out such punishment to one Muraya Julius Njire (P105/2290/92). Advocate for his misconduct committed by the said advocate severally in the course of these proceedings.vi.Such other disciplinary sanction against Muraya Julius Njire, Advocate as the Honourable Court would deem fit to mete outvii.Costs.”

3. The application is based on the grounds on its face and the supporting affidavit of Dr Davy Kiprotich Koech sworn on September 3, 2019. In his grounds the applicant posits inter alia that no consent, order or decree of the Court was obtained in this case permitting the plaintiff to auction his properties; that on April 29, 2019 Counsel for the Plaintiff Commission’s (EACC) in collusion with Samuel Mutahi Gathogo T/A Valley Auctioneers conducted a sham auction with a predetermined intention of divesting the applicant of his properties; no public auction took place but property was sold to the purported purchasers at figures lower than the amounts indicated on the Notifications of sale and the said purchasers did not pay 25% of the price at the fall of the hammer as required by law.

4. The applicant deposes that vide a plaint dated June 2, 2010. The Commission/Respondent sued him alongside Dustan Magu, his co-defendant for alleged misappropriation of public funds. He contends that through fraud and intimidation he was subsequently on January 22, 2016 coerced into signing a consent which was adopted as an order of the Court. and that in accordance with the terms of the consent partial judgment for the sum of Kshs 200,000,000 was entered against the applicant with the balance of Kshs 309,002,643 being the subject of further negotiations failure to which it was to be determined at trial. He avers that prohibition orders were issued against the aforementioned subject properties pending finalization of negotiations or determination of the main suit.

5. According to the applicant, in addition to the irregularities already highlighted, the auction of the subject properties was substantially flawed in the following ways: The Commission did not issue Valley Auctioneers with statutory letters of instructions for the applicant’s perusal prior to the auction before his properties were sold and the buyers did not make payment on their individual bids promptly and issued personal cheques contrary to the law. The applicant decried the auctioneer’s conduct and averred that both the commission and the auctioneers’ actions have caused him substantial loss in that for instance, some of his tenants acting under the wrong impression that the applicant has lost legal interest in the properties had refused to pay rent. He avers that these issues are the subject of court proceedings namely Kericho CMCC No 53 of 2019Bernard Kiprotich Martim vs Davy Kiprotich Koechand Kericho Environment & Land Court No 66 of 2014 Green Square Limited & Another in relation to Kericho Municipality Block 4/2.

6. The applicant also faults Mr Julius Muraya, an employee of the Commission for soliciting buyers and making deals for the sale of the properties by private treaty for his personal gain. He states that he inherited most of the subject properties and as such they are not proceeds of corruption. He avers that he acquired some of the properties before joining the Kenya Medical Research Institute (KEMRI) as Chief Executive Officer. In the circumstances, there is real and imminent danger of the subject properties being sold contrary to the doctrine of lis pendens.

Response. 7. The application was vehemently opposed by the Respondent and the Interested Parties. In summary the Interested Parties contended that they are the current registered owners of Kericho/Kapsuser/1962 and Kericho/Municipality Block 4/4 registered in the name of Mutai Hardware Stores and David Kipruto Ronoh respectively. In their submissions filed on September 22, 2020, they state that the auction sales stemmed from the consent order dated November 21, 2015 and that the auction sales were sanctioned and certified by this court. They submitted that after the warrants of sale were issued, Valley Auctioneers advertised the auction in the dailies and that the sale was initially scheduled for April 10, 2019 only for it to be postponed to April 19, 2020.

8. They content that the 2nd and 4th interested parties’ bids for Kshs 22,000,000 and Kshs 37,000,000 were accepted and they were issued with certificates of sale dated April 29, 2019 from the auctioneers both dated April 29, 2019; executed the necessary transfer documents and were issued with the certificate of sale from the Deputy Registrar dated August 19, 2019. Following those processes they took possession of the respective land parcels and their titles were eventually issued to them on November 14, 2019 for the 2nd Interested Party and December 5, 2019 for the 4th Interested Party.

9. The Interested Parties aver that at the time of possession and registration they were not active parties to this suit nor were they aware of any existing orders touching on them specifically the status quo orders of October 1, 2019. They aver that they only became aware of the current proceedings after seeing the relevant hearing notices in the Newspaper advertisement published on January 22, 2020. The interested parties asserted that the sales being challenged were legitimate, were conducted above board pursuant to the relevant rules and regulations and were sanctioned by the court. They prayed that the application dated September 3, 2019 be dismissed with costs.

Application for contempt of court 10. In the application dated November 27, 2019 the applicant seeks the following orders:“a)Spentb.Notice to Show Cause to issue to the respondents/contemnors to state why they should not be committed to civil jail for disobedience of the orders of Hon. Justice J N Onyiego issued on October 1, 2019c.The respondents/contemnors be committed to civil jail and detained in prison for six months or such period as the Honourable Court will deem fit, or both fine and imprisonment for contempt of the Honourable court’s orders issued on October 1, 2019. d.Such other or further consequential orders”

11. The 1st Defendant/Applicant’s case is that on October 1, 2019, Onyiego J issued orders that status quo be maintained on the subject properties but in contempt of the order the Respondent/Contemnors continued with the transfer of the subject properties to the purported buyers. That David Yegon of Mutai Hardware Stores forcefully took possession of Kapsurer/1962 measuring 1. 62ha in the company of goons who vandalized and demolished structures erected thereon. The applicant avers that all contemnors had knowledge of the existence of the order of Onyiego J but which they decided.

12. Mr Midenga Advocate, learned counsel for the applicant faulted the 4th respondent/contemnor for deposing that he was not aware of the status quo orders issued by the court having not been served and that after reading the order it was not clear to him what the order required him to do or refrain from doing either I person or in his official capacity. He also faulted him for deposing that the plaintiff/decree holder has hundreds of cases in courts all over the country hence he is not personally aware of each proceeding. Counsel averred that the 3rd respondent on the other hand denounced the status quo orders for lacking a penal notice. Counsel stated that the 3rd and 4th contemnor’s assertions were misplaced for the following reasons:“i.Under section 16(7) of the Ethics and Anti-Corruption Act the 4th respondent is the chief accounting officer of the plaintiffii.The Commission has always been represented by counsel (Mr Muraya & Ms Lai) hence any decision carried out by both counsel is binding on itiii.The contempt application is specific on events and individuals alleged to have obeyed the court’s ordersiv.The 4th respondent/contemnor has been sued in his official capacity as the secretary of the EACCv.Anyone, whether a party to the suit or not who wilfully disobeys court orders having had knowledge of the same is liable to be cited for contemptvi.It is not mandatory that a penal notice accompanies the court order; knowledge is sufficient.”

13. Counsel for the applicant cited the case of Regine Butt vs Haroon Butt & Another (2016) eKLR to the effect that court orders must be obeyed by all regardless of whether or not they are parties to a suit. On the issue of a penal notice Counsel cited the cases of Shimmers Plaza Limited vs National Bank of Kenya Limited (2015) eKLR and Wachiuri Farmers Co-operative Society Ltd & Another vs Mburu Mungai t/a Mburu Mungai & Associates the Registrar of Co-op Societies (2013) eKLR to buttress the submission that an omission to serve a penal notice may not necessarily vitiate contempt proceedings. Counsel submitted further that this court is indeed seized of jurisdiction to punish for contempt of court under Section 5 of theJudicature Act.

14. Counsel averred that all contemnors were personally served with or had knowledge of the status quo orders and as was decided in the cases ofBasil Criticos vs Attorney General & 8 Others [2012] eKLR and Kenya Tea Growers Association vs Francis Atwoli & 5 Others [2012] eKLR knowledge supersedes service. Counsel went ahead to describe such service and knowledge on the part of the contemnors as follows:i.The 1st interested party/contemnor was present in court on October 1, 2019 when the orders were issued.ii.The 2nd respondent/contemnor was personally served with the order by a licensed court process server, one Salmon Otieno Achola on November 21, 2019. iii.Ms Lai, Advocate held the 3rd Respondent/Contemnor’s brief on October 1, 2019 when the orders were issued.iv.The 4th respondent/contemnor’s knowledge flows from Ms Lai as stated above and the applicant’s advocates have on numerous occasions sent letters enclosing the court orders to the Chief Executive Officer EACC copied to the Chief Land Registrar but they chose to ignore them.

15. Counsel stated that as at October 1, 2019, the subject properties were still registered in the applicant’s name but to defeat the status quo orders Julius Muraya, the 3rd contemnor wrote a letter dated October 24, 2019 addressed to the Deputy Registrar of the court requesting facilitation of processing of the Capital Gains Tax Acknowledge Receipts (CGT3) using the Judiciary PIN under the Capital Gains Tax exempt category which was the genesis of the transfer of the subject properties to the contemnors herein. Consequently, the resultant title deeds presented by the contemnors were issued to them on November 14, 2019; December 5, 2019 and November 25, 2019. The applicant avers that the contemnors are not in possession of the subject properties as alleged. That the applicant continues to collect earnings from the tenants thereof save for some instances of attempted illegal eviction by the respondents.

16. Counsel for the applicant decried the “unethical” conduct of the 3rd Respondent/Contemnor and submitted that even in situations where an advocate is not named as a contemnor, the Court can still find such a person guilty of contempt so long as the ingredients of proof such as knowledge and wilful disobedience is met. To this end, counsel cited the case of Antony Siyuyu Kisiang’ani & Another vs Nzoia Out Growers Company Limited & 4 Others (2014) eKLR in which an advocate who was present when the order was given was found to be equally guilty of contempt being an officer of the court even though he was not named as such. Counsel urged the court to grant the orders sought and to grant orders for the cancellation of the transfer and registration of the subject properties in the names of the contemnors.

17. The contempt application was vehemently opposed by all contemnors. The Auctioneer, Samuel Mutahi Gathogo the 1st Interested Party/Contemnor in his replying affidavit dated December 4, 2019 stated that his conduct in relation to the subject properties was purely as a licenced auctioneer executing orders issued by this Court. He was categorical that he has never been served with any status quo orders issued by the court requiring the status quo to be maintained or asking him to perform or to desist from performing any task in relation to the sale by public auction of the subject properties.

18. The auctioneer avers that after he was furnished with a notification of sale dated January 24, 2019 issued by this court. On February 1, 2019, he proceeded to serve the judgment debtor with a 45 days’ notice to redeem the attached property via both registered mail and personal service. When the notice expired on March 18, 2019 without the applicant having made payment in satisfaction of the decree, he proceeded to advertise the properties for sale by Public auction but the sale was postponed. He contends that he proceeded with the exercise on the strength of the Court of Appeal ruling of May 16, 2019 in which the defendant’s application for stay of execution was dismissed. It is his position that the auction of two properties which did not meet the reserve price; namely Kericho Municipality Block 4/2 and 4/3 were adjourned but he was instructed by the Plaintiff/Respondent to accept all other bids that met the reserve price pursuant to which all purchasers paid the requisite 25% deposits at the fall of the hammer. He prayed for the application to be dismissed with costs for lacking merit.

19. In his submissions the 1st interested party/contemnor stated that he abided by rules 15, 16 and 17 of the Auctioneer’s rules to the letter hence he was not guilty of contempt. That the status quo orders were by themselves unclear and that as at October 1, 2019, thestatus quo of the subject properties were that 4 parcels of land had been confirmed and declared by the court as sold by public auction vide a ruling dated August 19, 2019. Further that, on August 27, 2019 the court issued certificates of sale for the said 4 parcels in favour of the respective purchasers on September 12, 2019 hence by the time the orders were issued the court had already executed transfers in respect of the subject properties by which date the auctioneer’s role was concluded. The 1st interested party placed reliance on the case of Africa Management Communication International Limited v Joseph Mathenge Mugo & another [2016] eKLR.

20. In their responses the 2nd, 3rd and 4th contemnors reiterated that they acquired the suit properties regularly through a public auction conducted by the 1st interested party. On April 29, 2019 Counsel for the 2nd to 4th contemnors placed reliance on the case ofMichael Sistu Mwaura versus Director of Public Prosecutions & 4 Others (2018) eKLR in which the court laid the following principles:i.That the person alleged to be in contempt of court orders wilfully and deliberately disobeyed a court order that he was aware ofii.That the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to or refrain from doingiii.The standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt and therefore this process should be exercised only as a last resort (this was particularly emphasized in the case of Republic vs Ahmad Abolfathi Mohammed & Another (2018)eKLR).

21. With regard to the first condition, it was submitted that the 2nd to 4th contemnors only became aware of the order for status quo vide a newspaper advertisement dated January 22, 2020 and filed Notices of appointment a month later hence there was no wilful and deliberate disobedience of the court orders in question. Secondly, that the status quo orders as issued are not clear given the factual positions that as at October 1, 2019 the sales had already been completed and effected.

22. In their replying affidavits sworn on December 3, 2019, the 3rd and 4th respondents disputed the allegation that order for thestatus quo was issued “in the presence of all parties.” They aver that at the time none of the purchasers of the subject properties were parties to this suit and contend that they were enjoined during issuance of directions in respect of the present contempt application. The 3rd and 4th respondents also pointed out that the applicant acting in concert with his wife, Nancy Koech whose cause as an objector was dismissed by this court on October 9, 2019 had previously peddled a similar narrative of contempt of court and sought committal to civil jail, cancellation of practicing certificate and calling for the sacking of the 3rd respondent with a view to intimidate the purchasers of the subject properties hoping to defeat the execution of the impugned decree.

23. In addition to the chronology of events advanced by the auctioneer, Counsel submitted that the public auction was held on April 29, 2019 whereby 4 out of the 6 properties advertised for sale were bought by various purchasers; currently the named contemnors. That there being no application challenging the propriety of the sale as envisaged by Order 22 Rules 74, 75 or 76 of the Civil Procedure Rules, this court by a ruling dated August 19, 2019 confirmed and declared the sale by public auction as absolute and further ordered that the two parcels that did not attract the reserve price be re-advertised for sale by public auction. That in the said ruling the court also ordered the plaintiff to present to the court complete transfer documents and any other documents requiring the Deputy registrar’s action and that subsequently on August 27, 2019, the court issued certificates of sale in favour of the respective purchasers of the subject properties.

24. It is further submitted that the letter dated September 27, 2019 by the 4th respondent dated September 27, 2019 addressed to the Kenya Revenue Authority sought directions on the statutory requirement for payment of Capital Gains Tax upon a request by the purchasers who had already lodged their applications for transfer for registration pre-dates the status quo orders. That in response, vide a letter dated October 22, 2019 addressed to the Hon Deputy Registrar of the court and copied to the Plaintiff/Respondent the Kenya Revenue Authority gave directions on exemption of payment of Capital Gains Tax, as none is payable by the Judiciary and that therefore, the said correspondence did not amount to action in contempt of court.

25. The 3rd and 4th respondents also urged the court to examine whether the applicant has: presented evidence of extraction of the status quo orders which are clear and unambiguous; personally served the same upon each of the respondents or demonstrated that they had knowledge thereof; whether the orders were accompanied by a penal notice personally served upon each of the respondents and whether the orders were wilfully and disrespectfully disregarded by specified conduct of each of the respondents.

Analysis and determination. 26. From a consideration of the parties’ pleadings, submissions and the applicable law, my finding is that the issues for determination are:i.Whether the applicant is entitled to orders setting aside the auction of his properties and the other orders.ii.Whether the respondents named in the Notice of Motion dated November 27, 2019 herein are guilty of contempt of court as alleged.

27. The gravamen of the Applicant’s Notice of motion dated September 3, 2019 is that there were no orders permitting the plaintiff/Respondent to auction his properties, that Julius Muraya Counsel for the Respondent, colluded with the Auctioneer to divest the Applicant of the properties, that there was no public auction at all and whatever sale took place was shrouded withy illegality/irregularity and fraud as the property was sold at a figure below that quoted in the various Notifications of sale and the purchasers did not pay 25% on the fall of the hammer and that the conduct of the auctioneer is unprofessional and merits sanction by this court. It is the applicant’s contention that after parties recorded the consent which was adopted as a judgment of the court on January 22, 2016 no decree capable of execution was issued in the matter. Further that he challenged the consent order on appeal and that moreover the consent order did not allow the plaintiff/Respondent to auction his properties. He contends that the plaintiff/Respondent did not go back to the court upon the lapse of the 120 days to seek an explanation on how to realise the monies if the consent was not honoured.

28. In the course of determining the applications before me I have painstakingly gone through all the bundles of the materials placed before me and this includes the court record. It is my finding that contrary to the submission of Counsel for the applicant there was and there still is a decree capable of execution against the Applicant. That decree flows from the order issued under seal by the Deputy Registrar on January 22, 2016. The order followed the partial consent recorded by the parties before Ombija J on January 18, 2016. The record also shows that on April 11, 2016 a formal order of prohibition was issued to the Applicant restraining him from dealing with the properties the subject of the two applications now before me. The record shows that on January 9, 2018 the plaintiff/Respondent through its Counsel Julius Muraya applied to execute the decree and presented a formal application to issue a Notice to Show Cause to the Judgment Debtor/Applicant. The record also shows that upon hearing both Counsel for the Respondent/Decree Holder and the Applicant/Judgement Debtor in the Notice to show cause the Deputy Registrar issued an order allowing the Respondent to execute the decree. The record further shows that thereafter by a ruling delivered on July 5, 2018 the Deputy Registrar settled the terms of the sale thereby paving way for the public auction. I have also confirmed that the sale was declared absolute by a ruling of the Deputy Registrar dated August 19, 2019. It is also evident from the record that the Applicant attempted to thwart the execution of the decree to the extent that he filed an application, to strike out the entire suit by revisiting an earlier order of Ougo J but his application was dismissed by the ruling of Ongu’di J dated December 7, 2018. The record shows that the Applicant appealed the ruling of Ong’udi J in Kenya Anti-corruption Commission v Dr Davy Kiprotich Koech and Dunstan MaguCourt of Appeal Application No 92 of 2019 and sought a stay of execution and stay of further proceedings in this suit pending determination of the appeal. However, by a ruling delivered on May 16, 2019 the Court of Appeal dismissed the application and observed: -“(18)Our consideration of these facts leads us to the conclusion that the propriety of the process of execution of the partial judgment entered by the court against the applicant, pursuant to a consent agreed upon by the parties, cannot be questioned through the intended appeal against the order dismissing the application to strike out the 1st Respondent’s suit. The fact that there is a judgment of the court which has not been set aside and which is not the subject of the intended appeal, removes the execution of that judgment from the ambit of Rule 5 (2) (b) ………….(25)Furthermore, an order of stay of proceedings/execution under Rule 5 (2) (b) is a discretionary order that is exercised by the court depending on the circumstances before it. In our view given the conduct of the applicant in failing to honour the consent, and the fact that the intended sale of the suit properties is sanctioned by an order of the court which is not being questioned before us, we do not think that the circumstances of this matter merit the exercise of our discretion in the applicant’s favour.(26)For these reasons we find that the applicant has not satisfied this court that orders under Rule 5 (2) (b) should issue. His motion dated March 22, 2019 is accordingly dismissed with costs to the 1st Respondent”. (Underlining mine)

29. At paragraph 21 of its ruling the Court of Appeal found that the application did not meet the arguability test. In its words.“(21)…..an appeal challenging the order dismissing the application for striking out the suit would not raise any bonafide arguable issue but would be frivolous and vexatious as it would amount to the applicant reprobating and approbating by arguing in one breach that, the 1st Respondent’s suit is frivolous, scandalous, and vexatious, while at the same time he has conceded to judgment being entered against him in the same suit, thereby tacitly admitting the propriety of the suit”.

30. It is clear therefore that an order/decree of the court capable of execution existed as at the time the properties the subject of these two applications were sold by public auction. Indeed, the Court of Appeal observed that the order was not contested in the Appeal. The record also shows that the correct procedure was followed both before and after the public auction and that Counsel acting for the Respondent cannot be faulted. Regarding the allegation that the properties were sold at a price less than that in the notification for sale no evidence was placed before me to prove that was the case. There is also no evidence of collusion between the Auctioneer and Counsel for the Respondent as would warrant this court to set aside the sale. Accordingly, the Notice of Motion dated September 3, 2019 is found to be devoid of merit and it is dismissed in its entirety.

31. As for the Notice of Motion dated November 27, 2019 in which the applicant seeks to cite the Auctioneer, the purchasers of the properties, Counsel for the Respondent and the Chief Executive Officer of the Respondent for contempt my finding is that whereas there is no doubt that this court has jurisdiction to punish disobedience of court orders and contempt of court, the application herein is a non-starter. This is for the simple reason that the applicant seems to have misinterpreted the order that was granted by Onyiego J on October 1, 2019. I say so for reason that by the time Onyiego J issued the order for status quoto be maintained the properties had already been sold and vested in the purchasers. That was the status quo as the sale had long taken place on April 29, 2019. Indeed a certificate of sale had been issued to the purchasers by an order of the Deputy Registrar granted on August 19, 2019 pursuant to an application by the Auctioneer dated May 29, 2019. It is instructive that in ordering that the status quo be maintained Onyiego J did not address himself to what the status quo at the time was and it seems that the correct positon was not disclosed to him. The sale having taken place it cannot be said that the contemnors acted in violation of the order for status quo. Moreover, as stated by the 2nd, 3rd, 4th, 5th and 6th Contemnors there is no evidence at all that they themselves were aware of that order. Further the prohibition order which could have formed the subject of Onyiego J’s order was directed at the Applicant which meant that the status quo in the suit would have been that he was not to deal with those properties pending hearing and determination of the Notice to show cause. It is my finding therefore that from whichever angle one looks at the application dated November 7, 2019 it cannot succeed and it too must be dismissed.

32. Before I pen off I wish also to echo the words of Mumbi J, as she then was, in this very case that:-“87. It seems to me that while the petitioner is entitled to use the judicial process to protect his rights, such use as has been made of the process by the petitioner and his spouses amounts to abuse of process. A party who brings a matter before court must bring his or her entire case before the court, must prosecute his or her matter expeditiously, and cannot be permitted to re-litigate the same matter by bringing other proceedings raising the same issues or using his proxies to re-litigate the same matter. I am in the circumstances constrained to agree with theEACCthat the present petition is an abuse of court process”.

33. Costs follow the event and accordingly both applications are dismissed with costs to the Respondents and the Interested parties/Contemnors.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19THDAY OF MAY, 2022. E N MAINAJUDGE