WALTER NDWIGA MISHECK v PHIDES WAMBUGI MUGO,JOYCE MARIGU KINEGENI & NJAGI MUGO [2011] KEHC 915 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL CASE NO. 77 OF 2005

WALTER NDWIGA MISHECK ………………..........................…………………………PLAINTIFF

VERSUS

PHIDES WAMBUGI MUGO …………………........................………………….1ST DEFENDANT

JOYCE MARIGU KINEGENI …............................………………………………..2ND DEFENDANT

NJAGI MUGO

(legal representative of the 1st Defendant )………....................................…………….APPLICANT

R U L I N G

On 31st May 2011 the Applicant (who is the legal representative of the estate of the 1st Defendant) filed this motion under section 5 of the Judicature Act Cap.8 and Order 40 rule 3 of Civil Procedure Rules seeking to have the Respondent/Plaintiff committed to civil jail for such a period as the court may deem fit for being in contempt of the court order issued on 6th July 2007. It was alleged in the supporting affidavit that despite the order of injunction having been issued on 6th July 2007 and served on 3rd August 2007, the Respondent and his agents were cutting down trees on the land in question and constructing a house on the same. The parcel in question is Ngandori/Kirigi/3204.

The background of this dispute is as follows. The Respondent did on 20th June 2005 file this suit claiming to have been the first registered proprietor of land parcel No.Ngandori/Kirigi/1517 but which the Defendants (who were brother and sister, respectively) had fraudently obtained and shared. The 1st Defendant had become the registered owner of Ngandori/Kirigi/3204 and the 2nd Defendant had become the registered owner of Ngandori/Kirigi/3205. The suit was filed to have the parcels retransferred to the Respondent and that the Defendants be permanently injuncted over the parcels. With the suit was filed a chamber application for a temporary injunction. The Defendant responded to the injunction by swearing a replying affidavit. He stated that the 2nd Defendant had died on 7th June 1992 and therefore that the suit or application could not be maintained against her without the letters of administration having been obtained. Regarding parcels 1517, he stated that the same had been sold to him by the Plaintiff on 27th May 1962 and the consent of the Land Control Board obtained. In 1982 the Board had given consent to the sub-division of the parcel and that is what had eventually led to the two titles. The replying affidavit went on to say that on 13th November 2001 the Respondent had successfully filed a claim to the Land Disputes Tribunal at Embu in case No.6 of 2001 seeking the parcels from the Defendants. The Tribunal had ordered the parcels to be given back to the Respondent and be registered as one parcel in his name. The 1st Defendant had then moved to the High Court in Nairobi in Misc. Application No.1445 of 2001 seeking the Judicial Review Orders of Certiorari, Prohibition and Mandamus. The main complaint was that the Tribunal did not have jurisdiction under section 3(1) of the Land Disputes Tribunal Act, 1990 to determine the ownership of registered land or to order its sub-division. The 1st Defendant had obtained the orders. The decision of the Tribunal was quashed.

Consequently, the 1st Defendant was opposing the injunction application on the basis that the parcel belonged to him and the deceased. He filed a defence along the same lines.

On 14th February 2007 the Defendants filed a chamber application under Order 39 rule 1(a) of the Civil Procedure Rules seeking a temporary injunction to restrain the Respondent and all those acting under him from trespassing on the parcels, grazing and cultivating thereon, or committing any acts of wastage in regard to them. The allegation was that the Respondent was committing this acts on the parcels. The application went before Justice Khaminwa who certified it as urgent and asked that it be served and heard interpartes on 6th July 2007. When the day came, the application was heard and granted. The order was extracted and served on the Respondent. On the basis that the order had been disobeyed, the 1st Defendant did on 20th February 2008 file a motion seeking the committal of the Respondent. The judge heard the application and found the Respondent to be in contempt. She ordered his imprisonment for six months.

The present application alleges that the Respondent has continued to disobey the order even after the punishment above. It is being sought that he be committed once more. It should be noted that the 1st Defendant has since died and that is why the legal representative of his estate is the one complaining. He is the Applicant. He was represented by Mr. Okwaro during the application. The Respondent was not represented. He opposed the application by insisting that the suit parcels are his and that is why he is on them.

The order that was extracted and served on the Respondent on 3rd July 2007 was the basis of the contempt application that was heard and determined. Ideally, that service was spent and should not be the basis of the present application. However, it is common ground that the Respondent is still aware of the order not to interfere with the suit parcels. He is therefore under unqualified obligation to obey it until it has been varied or discharged, and it does not matter that he thinks that the order is null, irregular or void. (HADKINSON –V- HADKINSON [1952] 2 ALL ER 567).

But, the court should guard against the abuse of its process. The Defendants do not have a suit or counterclaim against the Respondent and had no basis to seek or obtain an order of injunction against the Respondents. I say this with tremendous respect to the court that heard the application and granted it.

Despite this, however, there is an order which the Respondent continues to disobey. He continues to lay claim to the parcels and this is the reason for the disobedience. He says his children are seeking to protect the parcels against the intrusion by the Defendants. I find that the Respondent is technically guilty of the contempt of the order, but, given the history of the dispute as shown above and the fact that the matter is yearning for expeditious disposal so that the parties can move on, the punishment that commends to me is an absolute discharge. I ask that the Respondent pays the costs of this application.

DATED AND SIGNED AT BUNGOMA THIS 28TH  DAY OF SEPTEMBER 2011

A.O. MUCHELULE

J U D G E

DELIVERED AND SIGNED AT EMBU THIS 19TH  DAY OF OCTOBER 2011

H.ONG’UDI

J U D G E