Michael Wambua Mulwa & Anderson Muinde Mulwa v John Mulwa Nzioki, Jackson Muisyo Mulwa, Nicholas Muthama Mulwa, Benard Mutinda Mulwa & Johnson Mbenza Mulwa [2020] KEELC 3736 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 73 OF 2018

MICHAEL WAMBUA MULWA............................1ST PLAINTIFF

ANDERSON MUINDE MULWA..........................2ND PLAINTIFF

VERSUS

JOHN MULWA NZIOKI....................................1ST DEFENDANT

JACKSON MUISYO MULWA.........................2ND DEFENDANT

NICHOLAS MUTHAMA MULWA.................3RD DEFENDANT

BENARD MUTINDA MULWA........................4TH DEFENDANT

JOHNSON MBENZA MULWA.......................5TH DEFENDANT

RULING

1. In the Notice of Motion dated 27th May, 2019, the Plaintiffs are seeking for the committal of the 1st and 2nd Defendants to civil jail for a period of six (6) months for disobeying the court orders of 7th May, 2018.

2. The Application is premised on the grounds that on 17th April, 2018, the court issued orders of injunction restraining the 1st Defendant from dealing with parcels of land known as Mavoko Town Block 3/62387, 62388, 62391, 62390, 62393 and 3558 (the suit properties).

3. According to the 1st Plaintiff, the court order was served upon the Defendants who promptly appointed the law firm of B.M. Mung’ata & Co. Advocates; that the order was also served upon the Defendants’ advocates and that during the pendency of the court orders, the 1st Defendant transferred some of the suit properties while the 2nd Defendant had Mavoko Town Block 3/3558 sub-divided into several parcels of land into parcels number 75378-75880.  According to the 1st Plaintiff, parcel number 75880 was then transferred to Cross-order Border Works Limited.

4. The 1st Plaintiff finally deponed that the sub-division of the suit property was done during the existence of the court orders and that the 1st and 2nd Defendants were in contempt of the court orders and should be punished.

5. In his reply, the 1st Defendant deponed that they were served with the Application dated 16th April,2018 together with the Plaint on 25th April, 2018; that as at the time of serving them with the Plaint and the Application, the Applicants did not serve them with any court order and that the Applicants extracted the court orders of 7th May, 2018 and served their advocates with the same on 11th May, 2018.

6. The 1st Defendant finally deponed that the process of transfers was initiated long before the Applicants filed the suit; that parcel of land number Mavoko Town Block 3/3207 was sub-divided and transferred to various purchasers on 27th November, 2017; that parcel number 3558 was transferred to Jackson Muisyo Mulwa on 17th October, 2017 and that the Application for injunction was dismissed on 31st January, 2019 effectively discharging the earlier orders of injunction.

7. In his submissions, the Plaintiffs’ advocate submitted that the transfers and the sub-divisions of the suit property were done between the months of July, 2018 and October, 2018 in breach of the court orders which had been issued on 17th April, 2018.

8. The Defendants’ advocate submitted that the Plaintiffs extracted the court orders on 7th May, 2018 and served the Defendants with the same on 11th May, 2018; that the transfer of the suit property was initiated long before the Applicants filed the suit and that the Applicants’ Application for injunctive orders was dismissed on 31st January, 2019 effectively discharging the earlier orders of injunction.

9. The record shows that on 17th April, 2018, the Plaintiffs filed an Application dated 16th April, 2018 seeking to restrain the Defendants from sub-dividing, selling, transferring or dealing in any matter with several parcels of land, including Mavoko Town Block 3/62387-62393; Mavoko Town Block 3/332, 408, 1194, 1224, 2936, 3557, 3558.  The court granted to the Plaintiffs ex-parte interim orders of injunction for fourteen (14) days on 17th April, 2018. The record shows that the Defendants filed a Replying Affidavit on 9th May, 2018.

10. From the Supporting Affidavit, it is not clear when the order of 17th April, 2018 was first served on the Defendants or their advocates. However, the record shows that both the Plaintiffs and the Defendants’ advocates were in court on 26th April, 2018, on which day the interim orders granted on 17th April, 2018 were extended until 3rd July, 2018.

11. On 3rd July, 2018, the interim orders of injunction were again extended until 26th July, 2018.  Again on 26th July, 2018, the said orders were extended by the court until 31st January, 2019 when the Application for injunction was dismissed.

12. In the case ofMutitika vs. Baharini Farm Limited, Nairobi Civil Appeal No. 24 of 1985, the Court of Appeal held as follows:

“A person who, knowing of an injunction or an order of stay, willfully does something, or causes others to do something to break the injunction or interfere with the stay is liable to be committed for contempt of court as such a person has by his conduct obstructed justice.”

13. Indeed, all the Applicant has to show to succeed in an Application for contempt is the terms of the orders; knowledge of the terms by the Respondent, and failure by the Respondent to comply with the terms of the order. Upon proof of these requirements, the presence of willfulness and bad faith on the part of the Respondent would normally be inferred.

14. Indeed, personal service of an order is no longer a prerequisite before one can be found to have been in contempt of the order.  All the Applicant has to show is that the Respondent, or his advocate was aware of the order and the contents thereof (See Shimmers Plaza Limited vs. National Bank of Kenya Limited (2015) eKLR).

15. As I have stated, the Defendants’ advocate was aware of the injunctive orders of 17th April, 2018 on 26th April, 2018.  This was the day the Defendants’ advocate appeared in court on behalf of the Defendants for the hearing of the Plaintiffs’ Application dated 16th April 2018.  On the same day, and in the presence of the Defendants’ advocate, the injunctive orders were extended. The said order remained in force until 31st January, 2019 when the Application for injunction was dismissed

16. The 1st Defendant has not denied that as at the time this suit was filed on 17th April, 2018, he was the registered proprietor of parcels of land number Mavoko Town Block 3/62387; 62388; 62391; 62390 and 62393 as indicated in the official searches annexed on the Plaintiffs’ Affidavit. On the other hand, the 2nd Defendant was the owner of parcel of land number Mavoko Town Block 3/3558 at the time of the filing of the suit.

17. The Plaintiffs have exhibited official searches showing that on 4th July, 2018, parcel number Mavoko Town Block 3/62387 was transferred from the 1st Defendant to the County Housing Co-operative Society. The said County Housing Co-operative Society Limited sub-divided the said land into parcels of land numbers 75482-75560 on 14th November, 2018.

18. The Plaintiffs have exhibited a search showing that the 1st Defendant transferred parcel of land known as Mavoko Town Block 3/62388 to Gedion Musyoki Mutuku on 20th June,2018.  The Title Deed was then issued to Gideon Musyoki on 17th September. 2018.

19. On 20th June, 2018, the 1st Defendant transferred to Nicholas Muthama Mulwa parcel land number Mavoko Town Block 3/62391 and also transferred parcel number 62392 and 62393 to Johnson Mbenza Mulwa and Meshack Nzioki Muisyo respectively.

20. The official search exhibited by the Plaintiffs shows that on 13th September, 2018, the 2nd Defendant sub-divided parcel of land known as Mavoko Town Block 3/3558 into parcels of land numbers 75378-75880.  The 2nd Defendant proceeded to transfer parcel number 75880 to Cross Border Works Limited on 8th October, 2018.

21. It is therefore obvious that between 20th June,2018 and 8th October, 2018, the 1st and 2nd Defendants sub-divided and transferred the suit properties during the pendency of the court order.  Indeed, during this period, the 1st and 2nd Defendants and their advocates were not only aware of the court order restraining them from transferring or sub-dividing the suit land, but had been served with the extracted court order. Indeed, this fact has been admitted by the 1st Defendant who deponed as follows:

“7. That the Applicants extracted the court orders on 7th May, 2018 and served upon my advocates on 11th May, 2018”.

22. Although the 1st Defendant deponed that the process of transfers was initiated long time before the Applicants moved to court, he has not produced the copies of the Sale Agreements and Transfers to prove that assertion. Having failed to show that the process of transferring the land commenced before the orders of this court were issued, or before they became aware of the orders, I find and hold that the 1st and 2nd Defendants intentionally and contemptuously sub-divided and transferred the suit properties during the pendency of a valid court order.

23. It has been held by the courts that unless and until a court order is discharged, it ought to be obeyed.  As was held by the Court of Appeal in Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others, Civil Application No. Nairobi 247 of 2006, it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a court of law.

24. In the case of Awadh vs. Marumbu (No. 2) No. 53 of 2001 (2004) KLR 458, the court held that it is the duty of the court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with the approved contemnors.

25. Having considered the totality of the evidence before me, it is my finding that the 1st and 2nd Defendants are in contempt of the orders of this court. The 1st and 2nd Defendants should be punished for their contemptuous actions by this court. The Application dated 27th May, 2019 is therefore allowed in the following terms:

a. The 1st and 2nd Defendants are in contempt of the orders of this court of 17th April, 2018 and issued on 7th May, 2018.

b. The 1st and 2nd Defendants to mitigate before a sentence is issued by the court.

c. The 1st and 2nd Defendants to pay the costs of the Application.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JANUARY, 2020.

O.A. ANGOTE

JUDGE