Criticos & another v AIC Makutano & 66 others (Environment & Land Case 3 of 2024) [2024] KEELC 4732 (KLR) (Environment and Land) (14 June 2024) (Ruling)
Neutral citation:
[2024] KEELC 4732 (KLR)
Republic of Kenya
Environment & Land Case 3 of 2024
EK Wabwoto, J
June 14, 2024
Between
Basil Criticos
1st Plaintiff
Kenya Trade and Development Company Limited
2nd Plaintiff
and
Aic Makutano
1st Defendant
Mbuyuni Primary School
2nd Defendant
David Kioko Mutua
3rd Defendant
Alphonce Mwaka Masika
4th Defendant
Thomas Mutnga
5th Defendant
Ronald Mutiso Mutua
6th Defendant
Ruth Mkumbulu Lelewu
7th Defendant
Rebecca Njicha Mtua
8th Defendant
Othaniel Mnene
9th Defendant
Andrew Jumamosi Masamo
10th Defendant
Attorney General
11th Defendant
Adriana Shali Msafari
12th Defendant
Marion Atieno Moon
13th Defendant
Duncan Jacob Maghagha
14th Defendant
Jane Waithira Kairo
15th Defendant
James Fred Newton Wandera
16th Defendant
Mbuyuni Women Group Organization
17th Defendant
Sabastian Letimiane Mwachila
18th Defendant
Petro Chikira Edward
19th Defendant
Edward Rashid Makore
20th Defendant
Jackson Matano Fundi
21st Defendant
Nzioki Mutua Mbulu
22nd Defendant
Bahati Kinyoka
23rd Defendant
Protus A. Seboru
24th Defendant
Musa Saleri Fundi
25th Defendant
Joseph Saleri Fundi
26th Defendant
Dennis Mwangeka Mombo
27th Defendant
Janet Chilumo Mbwana
28th Defendant
Pascal Sio Mtula
29th Defendant
Martin Mramba
30th Defendant
Nuhu Layoni Abdulrahaman
31st Defendant
Mwanatumu Hamisi
32nd Defendant
Jared Onyansi Nyaundi
33rd Defendant
Clement Lenjo
34th Defendant
Annabel Raduma Ojoo
35th Defendant
Liverson Maroro
36th Defendant
Linnet Ngele Idawo
37th Defendant
Mwakulomba P. Shete
38th Defendant
Joseph M. Mwachila
39th Defendant
Godwin Mwiti Mugira
40th Defendant
Elina Johana Mwachia
41st Defendant
Challa Chemicals International Limited
42nd Defendant
Denis N Munyi
43rd Defendant
Michael Wiso
44th Defendant
Alfred Isaack Mnyanya
45th Defendant
Cornel Kinyili Kongo
46th Defendant
Caroline Edina Atieno Adhola
47th Defendant
John J Swai
48th Defendant
John Mutua Mwangi
49th Defendant
Mark Ngwati Mbithi
50th Defendant
Chemomobo Teclah Mukhebet
51st Defendant
Erastus A Maroo
52nd Defendant
Paul Mwasaru Mwazumo
53rd Defendant
Jesmily Wakesho Mwazumbo
54th Defendant
Nioram Holdings Limited
55th Defendant
Japhet Mndambo Bashari
56th Defendant
Tolowa Ramaita
57th Defendant
Rennison A. Mwadime
58th Defendant
Ruth Kameme
59th Defendant
Jackson Kimiri Msuya
60th Defendant
Matenge K Ngau
61st Defendant
Mutua Mbithi Mburu
62nd Defendant
Ephraim Ngorio Simeon
63rd Defendant
Benson Kisombe Msula Mbede
64th Defendant
Land Settlement Fund Board Of Trustees (Formerly known as the Settlement Fund Trustees)
65th Defendant
The Chief Land Registrar
66th Defendant
The District Land Registrar, Taita Taveta
67th Defendant
Ruling
1.The Plaintiffs have moved this court vide an application dated 27th November 2023 seeking to cite Japhet Mndambo Bashari the 56th Defendant for contempt of the orders of this court given on 9th November 2020.
2.The application is premised on the grounds on its face and on the supporting affidavit sworn on 27th November 2023 by Basil Criticos. It was averred that the 56th defendant has deliberately and wilfully disobeyed clear orders that were granted by this court on 9th November 2020. The orders were clear that no new person would be allowed to enter the land and or carry out any development thereon pending hearing and determination of the suit.
3.It was also averred that the 56th Defendant is one new such person who was not on the suit property as at 9th November 2020 when the orders were granted barring any new person not on the suit property from entering the same. The 56th Defendant being aware of the said orders chose to deliberately and wilfully disobey them through the following actions; illegally fencing a portion of the suit property, illegally ploughing the illegally fenced portion of the suit property, illegally planning crops on the illegally fenced and ploughed portion of the suit property, illegally placing a large blue container on the illegally fenced portion of the suit property whose contents are unknown illegally placing construction materials on the illegally fenced portion of the suit property.
4.It was further averred that the Plaintiffs through their Advocate on record wrote to the 56th Defendant asking him to immediately cease any interference with the suit property and further demanded that he complies with the orders of the court of 9th November 2020 to keep away from the suit property and thus the 56th Defendant had actual and personal knowledge of the court orders of 9th November 2020.
5.The Plaintiffs also filed written submissions in support of the application upon which Learned Counsel Mr. Obok in highlighting the same urged the court to cite the 56th Defendant for contempt of the orders issued herein.
6.The 56th Defendant filed a Replying Affidavit sworn by Japhet Mndambo Bashari on 16th January 2024. It was deponed that he was not a party to this suit as at 9th November 2020 when the said orders were issued. It was stated that he was joined to these proceedings on 16th September 2022 and that the Plaintiffs had also filed another suit Mombasa ELC No. 143 of 2022 Kenya Trade & Development Co. Ltd v Japhet Mndambo Bashari which was dismissed and as such there are no injunctive orders against him upon which he can be cited for contempt. He also stated that he has been in occupation of Plot No. Taita/Taveta/Lake Jipe Settlement Scheme/779 since 1999 way before 2022 and before issuance of titles on 6th February 2015. Counsel for the Defendant also made oral submissions in support of the application.
7.Having considered the application and submissions made by Counsel for the parties, the main issue for consideration is whether Japhet Mndambo Bashari, the 56th Defendant is in contempt of the orders issued by this court on 9th November 2020.
8.The law relating to contempt of this court is found in section 5 of the judicature Act, section 29 of the Land Act and The Practice Directions on Proceedings in the Environment and Land Court.Section 5 of the Judicature Act provides as follows;Section 29 of the Environment and Land Court Act provides as follows;Practice direction 43 on Proceedings Relating to the Environment and the Use and Occupation of, and title to Land and Proceedings in Other Courts (Gazette Notice No. 5178) provides that non-compliance with the relevant provisions of the CPR, orders, and/or directions issued by a judge shall attract sanctions including but not limited to the imposition of costs, fines, striking out of pleadings, the dismissal of a suit and/or meting out punishment prescribed in the ELC Act or any other Statute as the court may deem fit bearing in mind the overriding interest of justice.
9.This application is seeking prayers that the 56th Defendant be found to be in contempt. What constitutes contempt of court?
10.In the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the Learned Judges of Appeal went to great lengths in tracing the foundations of law on contempt as practiced in Kenya. They state;
11.Part 81 provides for four different natures or forms of violations under contempt of court. They are;i.Committal for “breach of a judgment, order or undertaking to do or abstain from doing an act” provided for under Rule 81.4.ii.Committal for “interference with the due administration of justice” (applicable only in criminal proceedings) provided for under Rule 81.11.iii.Committal for contempt “in the face of the court”, provided for under Rule 81.16.iv.Committal for “making false statement of truth or disclosure statement.” provided for under Rule 81.17.
12.For what it is worth, I have demonstrated that the willful disobedience of any judgment, decree, direction, order, or other constitutes contempt of court.14. In effect, an applicant seeking to cite another for contempt is held to very high standards of proof, higher than in civil cases. He must prove the following:a.That there is in existence of an order/ judgement that is clear unambiguous and binding.b.That the Defendant/Respondent has knowledge of the said order/ Judgementc.That the Defendant/Respondent has acted in breach of the said ordersd.That the Defendant/Respondent’s conduct is deliberate.
13.In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo J (As he then was) stated that;
14.An allegation of contempt of court is a serious matter since it puts the liberty and or property of the contemnor at grave risk. It is for that reason that the standard of proof in contempt proceedings is higher than the usual one in civil proceedings of proof on a balance of probabilities. See Mutitika v . Baharini Farm Limited [1985] KLR 229 and Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR.
15.Looking at the circumstances in the present application, this court issued its orders on 9th November 2020. The said orders was issued against the Defendants who were on record and it was as follows:
16.The 56th Defendant was not a party to the suit though he was already in occupation of the same, these facts have not been disputed and or controverted by the Plaintiffs. Hence therefore the said orders as at the time of issuance could only have applied to the parties on record. Further the Court is unable to confirm whether the 56th Defendant’s actions were deliberate and in breach of the said orders.
17.In the absence of evidence showing the existence and satisfaction of the ingredients necessary to prove contempt, the application fails.
Conclusion
18.In view of the foregoing and considering the evidence adduced herein, this court is not satisfied that he Plaintiffs have met the threshold for grant of the orders sought and in the circumstances the Plaintiffs application dated 27th November 2023 is hereby determined as follows;a.The application is dismissed.b.Each party to bear own costs of the application.
DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 14TH DAY OF JUNE 2024.E. K. WABWOTOJUDGEIn the presence of:-Mr. Obok for the Plaintiffs/Applicants.Ms. Juma h/b for Mr. Mutubia for 7th and 12th Defendant.Ms. Mwaniki h/b for Busaidy for 13th Defendants.N/A for the 56th Defendant.N/A for the other parties.Court Assistant; Patrick Maina.