REPUBLIC v OFFICER COMMANDING POLICE DIVISION (O.C.P.D) [2008] KEHC 1256 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Misc. Civ. Appli. 897 of 2003

REPUBLIC …………………………………………………...… APPLICANT

VERSUS

THE OFFICER COMMANDING

POLICE DIVISION (O.C.P.D)………………………………RESPONDENT

R U L I N G

Before me is an application by way of Notice of Motion brought under Section 5 of the Judicature Act (Cap 8) and Order L Rule 1 of the Civil Procedure Act seeking orders that the Officer Commanding Police Division (OCPD) Narok SSP Patrick Ogutu Wambani be committed to civil jail for a period not exceeding six months for disobeying, neglecting and/or disregarding orders of this Honourable Court.  The application is based on the grounds as stated on the body of the Notice of Motion and supported by an affidavit sworn by the Applicant.

The facts which gave rise to this application briefly may be stated.  Luke K. Mpayeei whom I will herein refer to as the Applicant sued Olelai Ole Pere, Motalel Ole Letohio, Meshashi Ole Saloli and Whinstone Sakara herein referred to as Respondent over LR No. CS-MARA/NAILOKILOK/25.

The dispute went before a Panel of Elders for arbitration who found for the Applicant. The award was filed at the Resident/Magistrate’s Court Narok and the magistrate entered the award as judgment of the court.  The court issued eviction order to be carried out by the Court Bailiff and the order was directed to the OCPD Narok District to provide the necessary security to the Court Bailiff to carry out the eviction.  It is alleged by the Applicant that the OCPD had failed to provide the necessary security to the bailiff to carry out the eviction which failure gave rise to these committal proceedings.  The order directed to the OCPD was issued on 24th September 2004.

Miss Kiniti appearing for the Applicant submitted that the order was served on the said OCPD on 31st May 2007 and the same was acknowledged but disobeyed and in conclusion she urged the court to grant the order as prayed and issue committal orders.

The application is opposed by Gekara appearing for the Respondent who submitted that the alleged order was ambiguous and incapable of being acted upon as the same was directed to the Officer Commanding District.  The same read as follows:

ORDER

APPLICATION FOR ORDERS

1. ………………………….

2. That the defendant’s, servants and/or any other party claiming through them be evicted from the suit premises since the boundaries have been marked by the District Land Registrar Narok District in conjunction with the District Surveyor.

3. That the Officer Commanding District (OCPD) Narok to provide the necessary and sufficient security to the Court Bailiff to be appointed to carry out the eviction.

4. …………………………….

Mr. Gekara went on to submit that the Respondent Commands Police Division and to that extent the order was ambiguous.  For one to be cited for contempt of a court order the order must be specific and  unambiguous and absolutely clear.  Furthermore the OCPD does not command police stations which are under the command of Officer Commanding Police Station (OCS) and therefore he does not have command directly over police personnel under his command to utilize such, order should be directed to OCS and not OCPD.

But be it as it may it is unlawful to utilize the police in a civil action for the purpose of effecting or aiding private evictions or reinstatements.  This was so stated by the Court of Appeal in the case of KAMAU MUCUA V. THE RIPPLES LTD CA No. 186 of 1992.

In that case a formal order has been extracted in which it was stated that police assistant may be enlisted to ensure that the plaintiff ie the Respondent is reinstated to the premises.  On appeal the Court of Appeal had this to say:

“Paragraph 4 of the formal order extracted on 22nd September 1992 says that police assistance may be enlisted to ensure that the plaintiff i.e the Respondent is reinstated to the premises.

It would be lawful to utilize the police in a civil action for the purposes of effecting or aiding private evictions or reinstatements.

For the reasons stated above I am not persuaded that I should exercise my discretion in favour of the applicant.  Accordingly I decline to grant orders in terms of prayer 1 of the Notice of Motion dated 8th October 2007 as prayed.

Application is dismissed with costs to the Respondent.

Dated and delivered at Nairobi this 25th day of July, 2008.

J. L. A. OSIEMO

JUDGE