Mbogho & 2 others v Director Lands Adjudication & Settlement & 4 others (Environment & Land Petition E012 of 2024) [2025] KEELC 285 (KLR) (Environment and Land) (31 January 2025) (Ruling)
Neutral citation:
[2025] KEELC 285 (KLR)
Republic of Kenya
Environment & Land Petition E012 of 2024
EK Wabwoto, J
January 31, 2025
Between
Herman Mwakitau Mbogho
1st Petitioner
Asha Mwake Ndolonga
2nd Petitioner
Newton Chuma Mwakio & others
3rd Petitioner
and
The Director Lands Adjudication & Settlement
1st Respondent
Chief Land Registrar
2nd Respondent
National Land Commission
3rd Respondent
Masden Malagho
4th Respondent
Attorney General
5th Respondent
Ruling
1.This is a ruling in respect to the Petitioner’s application dated 22nd July 2023 seeking for the following reliefs:-1.Spent…2.That this Honourable court be pleased to order that the 1st, 2nd, 3rd and 5th Respondents purge their contempt within twenty one (21) days from the date of this order.3.That pending hearing and determination of this application the 1st, 2nd, 3rd and 5th Respondents their agents, servants, officials or any other person whatsoever not being petitioner be restrained and/or prohibited from entering, developing or using any parcel resulting from subdivision of Voi Municipal Block 3 or in any other manner from interfering with the petitioners quiet enjoyment, use, occupation or possession thereof whatsoever.4.That this Honourable Court be pleased to find the current office bearers of the 1st, 2nd, 3rd and 5th Respondents to be in contempt of court for disobedience of the Court Orders issued on 15th May 2023.5.That upon grant of prayer (4) above, this honourable court be pleased to issue an order committing the current office bearers of the 1st, 2nd, 3rd and 5th Respondents to Civil Jail or condemn them to pay a fine for disobeying court orders issued on 15th May 2023.6.That pending determine of the fairness and the equitable distribution on those deserving allocation by court, the 1st, 2nd, 3rd and 5th Respondents their agents, servants, officials or any other person whatsoever not being petitioner be restrained and/or prohibited from entering, developing or using any parcel resulting from subdivision of Voi Municipal Block 3 or in any other manner from interfering with the petitioners quiet enjoyment, use, occupation or possession thereof whatsoever.7.That the OCS Voi Police station do ensure compliance of the orders issued herein.8.That the costs of this application be borne by the Respondents.
2.The application is also supported by the affidavit sworn by Anthony Majimbo on the 22nd July 2024 which reiterated the grounds made in support of the said application.
3.The application was opposed by the 4th Respondent who filed grounds of opposition dated 4th October 2024. It was contended that the application is misconceived, bad in law and offends the provision of Order 9 Rule 9 of the Civil Procedure Rules for the reasons that the said application has been made after delivery of judgment by a party acting in person without the leave of the court or consent sought from the said counsel who was on record.
4.It was also contended that the said application seeks to cite parties for contempt in the absence of a Decree/or Order of the Court.
5.The court has considered the said application and the oral submissions made by the Petitioners and the 4th Respondent during the plenary hearing of the said application and the main issue for consideration is whether this application is merited to warrant the grant of the prayers sought.
6.Section 5 of the Judicature Act:
7.The procedure in the High Court of Justice in England was considered in detail by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR.
8.Rule 81.4, 81.5, 81.7 and 81. 8 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides for the requirements of a contempt application, the manner of service of the application, directions for hearing of contempt application and hearings of such applications.
9.In Civil Case No. 111 of 2016 Cecil Miller vs Jackson Njeru & Another [2017] eKLR the Court listed the elements of civil contempt as follows;-
10.The above mentioned four elements that must be proved to make a case for civil contempt.
11.In the instant application the court has first to be satisfied that the said application is properly before this court since the nature of a contempt application is one that has serious ramification wherein if the contemnor is found guilty he or she loses his right to liberty.
12.It was the 4th Respondent’s contention that the application offends Order 9 Rule 9 of the Civil Procedure. Order 9 Rule 9 of the Civil Procedure provides that Order 9 Rule 9 of Civil Procedure Rules that;
13.In my considered view and as has been held in various court decisions and rightly posited by the both parties in their written submissions, the intent of Order 9 Rule 9 and 10 of the Civil Procedure Rules was to cure the mischief of litigants sacking their advocates at the execution stage or at the point of filing their bill of costs thus denying their advocates their hard-earned fees. Hence therefore once judgement has been rendered, leave has to be sought from the same court.
14.In the instant application, the court has perused the record and it is evident that the Petitioner filed the said application without leave of this court and consent from their previous Counsel on record and as such the said application is not properly before this court.
15.The Petitioner also conceded during the plenary hearing of the said application that they had not annexed a proper decree duly signed by the Deputy Registrar of this court.
16.In view of the foregoing, it is the finding of this court that the said application is unmerited and the same is dismissed with an order that each party to bear own costs of the said application.
DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 31ST DAY OF JANUARY 2025E. K. WABWOTOJUDGEIn the presence of:-Mr. Majimbo the 16th Petitioner appearing in person.N/A for the Respondents.Court Assistant: Mary Ngoira.