Michael Nasimolo Muyelele v Reba Kibaba & David Waliaula [2013] KEHC 5743 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION NO. 84 OF 2013

MICHAEL NASIMOLO MUYELELE..............……....………....……..APPLICANT

VERSUS

REBA KIBABA....………..............…………….…..….......….1ST RESPONDENT

DAVID WALIAULA........................................................ 2ND RESPONDENT

RULING

The applicant has filed the notice of motion dated 27th March 2013. He seeks court's leave to apply for contempt  proceedings against the Respondent for disobeying the order dated  13th February 2013 granting temporary stay of  construction.  And if leave is granted, the application for contempt be filed within 14  days.

The application  is supported by the affidavit of Michael Nasimoli sworn on 28th March 2013 and his supplementary affidavit sworn on 14th May 2013.

In his affidavit he avers the  Respondent was served  with the order on 18th  February 2013 and that he never stopped construction.  In the supplementary affidavit he says the Respondent applied to set aside the orders of 13th February 2013 and he never raised the issue of title to the suit land.

The application is opposed.  The  Respondent has filed a replying affidavit where he says  he has not been served with any order stopping construction on L.R. No. S. Malakisi/N & C Namwela/573.  The order  served on him did  not refer to  L.R. No. S. Malakisi/N & C Namwela/573.

I would like to point out that  the order  complained of  arose from  Bungoma CMCC No. 10 of 2011. I do not know the reason why the applicant has chosen to apply for leave in the higher court instead  of the  court which issued the order.  The pleadings from which this order arose were also not annexed  to the  the present application.

In several decisions of The High Court of Kenya, it  has been held that if the contempt emanates from injunctions issued under Order 39            Rule 2 (now Order 40 Rule 3(1)),  then a party does not  require leave to commence contempt proceedings.This was the holding by Justice Ransley in  Fidelity Shield Commercial Bank Ltd. Vs. Shamsherali K. Kurji & another, Nbi HCCC No. 1276 of 2001. Similarly  Justice V. Juma (as he then was) emphasized in the case of John  Sachia Ndirangu Vs. Peter  Ngang'a & another, Nbi HCCC No. 3697 of 1995that you do not require leave to institute contempt proceedings under Order 39.

I have read through the case law cited by the Respondent i.e Godfrey Kimani Vs. Thomas Wambura [2012] e KLR, Joseph Peter  Gichoya vs. Patrick D. Ikiefwe [2006] e KLR and HFCK S. Ngige Kitson Mondo [2006] e KLR all relate to the application for contempt.  However the instant application is for leave to institute contempt proceedings. The authorities are therefore not relevant at  this stage of the proceedings.

Having explained that leave of court is not necessary if the order disobeyed emanated from the former  Order 39 (now Order 40).  And taking into account that  this is merely an application for leave,  there is no reason  given to this court by the respondent why the same  should not be granted. I therefore proceed to allow it.  The Respondent will have opportunity to contest  the application for contempt once proceedings for the same is instituled. Not forgetting to remind the applicant to commence the contempt proceedings in the court whose order has been disobeyed.The application is allowed with costs  in the cause.

RULING DATED, SIGNED, READ AND DELIVERED in open court this  20th day of June   2013.

A. OMOLLO

JUDGE.