KOGO MUGANDA VINCENT v JOHN MBUGWA KUNGU [2011] KEHC 2908 (KLR)

 AT KITALE.

1.     The Notice of Motion dated 20^th November, 2009 is taken out by John Mbugua Kungu who was the plaintiff in SPMCC No 85 of 2001. In that case judgment was entered in favor of the applicant and an order was issued to the effect that the respondent be evicted from the suit premises. The respondent was evicted from the suit premises and all the semi permanent structures that were standing on the plot were also demolished. The respondent’s application  for stay of execution were pending the hearing and determination of the appeal were also dismissed in the lower court and also in this court.

2.     On the 15^th June, 2007 the respondent filed an application seeking for an order of stay of execution. On 25^th July, 2007 in the presence of the parties the court ordered that there be an order of status quo which meant that there would be no more demolition and the respondent was not supposed to undertake any construction on the suit premises. It is the respondent who extracted the order and served it upon the applicant. It is alleged that notwithstanding the order directing both parties to observe the status quo, the respondent disobeyed the order, he reentered the suit premises and constructed a structure which is called Trees shade Café where he is carrying on business. The applicant has annexed copies of the certificates of lease in which he is the registered proprietor of the plot known as Kitale Municipality Block 6/159 from 1^st February, 1996. He also annexed photographs of the structures constructed by the respondent and the photographs of the plot after he had effected the demolition pursuant to the order granted in the lower court. 

3.     The applicant seeks for an order of committal of the respondent to prison for a period of 6 months for deliberately disobeying the order of 25^th July, 2007. The applicant also seeks for an order that the respondent do punch the contempt by demolition all the structures that he has put up in the suit premises or in the alternative the applicant can demolish the structures at the expense of the respondent. This application is supported by the affidavit of the applicant sworn on 20^th November, 2009. The statements of particulars filed pursuant to order 52 rule 2 (2) of the Supreme Court Rules. The applicant also filed a verifying affidavit which has details the chronology of the events and several applications that were made culminating with the order to maintain the status quo.

4.     The applicant also obtained leave of the court on 10^th November, 2009 to institute this application for contempt.   In further argument in support of the application for contempt, Mr. Kiarie, learned counsel for the applicant submitted that the orders that the respondent has disobeyed were made at his request. It is not open for the respondent to say he was not served with the order because it was the applicant himself who extracted the order and the penal notice and served it upon the applicant. Thus the respondent frivolently disobeyed the order by moving to the suit premises and constructing structures while the order maintaining the status quo was in force. Counsel cited several Court of Appeal decisions where the Court of Appeal emphasized the duty of the court to maintain and protect the dignity of the court by punishing deliberate disobedience of its orders. (See the case of Refrigerator & Kitchen Utensils Limited vs. Gulabchand Popatlal Shah & Others ( CA No. 39 of 1990)

5.     The respondent did not file any replying affidavit but Mr. Mokua, learned counsel for the respondent relied on preliminary objection that contains points of law. According to the respondent, although the application was made by the respondent where the order of status quo was issued, the applicant never extracted the order and never served it upon the respondent. Moreover, this application was filed mover than one year ago and it was never prosecuted. According to the case of Awadh vs. Marumbu (No. 2) This court has been asked to determine whether the respondent committed contempt of court by disobeying a court order. It is common ground that the order directing the status quo be maintained was issued by the court and the court clarified what constituted the status quo. It is also common ground that the respondent is the one who extracted the order as well as the penal notice and served it upon the applicant. The issue to determine is whether the respondent was served with the order. This question answers itself because the facts that the respondent extracted the order and drew the penal notice is clear demonstration that he was aware of the order of status quo. The order was directed to both the applicant and the respondent. The respondent has not filed any replying affidavit in respect of this application. The facts deposed to in the affidavit and the statement of facts have not been controverted. In other words the respondent has not denied that he moved into the suit premises and constructed structures when there was an order barring any party from entering the suit premises. It is trite law that court orders must be obeyed with utmost obedience (see the case of Mutitika vs. Baharini Farm Ltd (1985) KLR in addition to setting out what constitutes contempt of court also set out the standard of proof in contempt of court proceedings).