1. On 24/10/2024, the Defendants were found to be guilty of contempt by disobedience of a court order dated 18/9/2020 and were directed to appear before this court in person for purposes of sentencing. However, before the sentencing could proceed, the Defendants filed a Notice of Motion application dated 10/3/2025 seeking the following orders:
1) Spent;
2) Spent;
3) That this honourable court be pleased to stay mitigation and sentencing process to allow the firm of M/S IRB Mbuya & Company Advocates acquaint themselves with the matter herein.
4) That there is need for a plot status report be filed in court to determine the real status quo of the plot before the court proceeds to sentence the Defendants/applicants;
5) That the costs of this application be in the cause.
2. The Application is supported by an affidavit sworn by Osborne Lijoodi and based on the following grounds:
a) That the Defendant/applicants herein duly instructed the firm of IRB Mbuya & Company Advocates to come on record in the suit and represent their interests forthwith;
b) That the Defendant/applicant herein is desirous to come on record and as per the judgment dated 4/2/2025, we would like to participate in the mitigation process as this matter has a judgment;
c) That failure to file this application on time was not at all deliberate but an oversight on our part as we have had instructions for one week;
d) That we have had sessions with the Defendants/applicants and what is pending is for us to have a look at all pleadings to enable us represent the Defendants/applicants further in this suit;
e) That no injustice or prejudice will be occasioned to any of the parties if the orders sought are granted;
f) That the Defendants/respondents have requested us to move the court before mitigation is carried out and sentencing;
g) That it is in the interest of justice, fairness and equity for this court to grant the orders sought.
3. The application is opposed by the Plaintiff through a replying affidavit dated 18/3/2025. According to the Plaintiff, the application is incompetent as the supporting affidavit offends Rule 9 of the Advocates Practice Rules, and that the application is an afterthought and an abuse of the court process. To him, the application is an attempt by the Defendants to relitigate the motion dated 27/7/2023 through the back door and that the issues raised should have been raised as a response to the Notice of Motion dated 30/5/2023. The Plaintiff added that the Defendants have not shown that they have purged the contempt by vacating the suit premises as was ordered by the Court on 24/10/2024. The Plaintiff added that the application is an afterthought and it is not clear how the ground status report will assist the court at this point.
4. The application was canvassed by way of written submissions. While the Plaintiff filed written submissions, the Defendants relied on oral arguments presented in court. I have considered the pleadings, the affidavits on record, and the submissions presented.
5. It is not in dispute that the Defendants were found in contempt of court orders and that the matter is currently at the sentencing stage. It is also not in dispute that this is not the first application seeking to stay mitigation and sentencing. A similar request was previously adjudicated upon by this Court and a ruling delivered on 4/2/2025. This application is therefore res judicata, the same having been determined earlier. Courts are not inclined to entertain repeated applications aimed at staying execution or mitigation after a finding of contempt has already been rendered.
6. Further, the request for a ground status report at this stage is misguided. The Court rendered judgment, and the process of execution is underway. The status of the land does not affect the fact that the Defendants disobeyed court orders. The question before the Court is sentencing, not ownership, use, or occupation status of the land. In essence, the application distracts from the real issue before the Court and seeks to reintroduce issues already conclusively determined.
7. The argument that the newly instructed firm requires more time to familiarize itself with the matter cannot be used as a basis to stall judicial proceedings. The Defendants have had ample opportunity to instruct counsel and prepare for mitigation. The administration of justice must not be held at ransom by last-minute litigation tactics.
8. I am therefore persuaded that the application dated 10/3/2025 lacks merit and is an abuse of the court process, and it is accordingly dismissed with costs to the Plaintiff.
Dated, signed and delivered at Malindi via electronic mail on this 18th day of June 2025.
1) Spent;
2) Spent;
3) That this honourable court be pleased to stay mitigation and sentencing process to allow the firm of M/S IRB Mbuya & Company Advocates acquaint themselves with the matter herein.
4) That there is need for a plot status report be filed in court to determine the real status quo of the plot before the court proceeds to sentence the Defendants/applicants;
5) That the costs of this application be in the cause.
2. The Application is supported by an affidavit sworn by Osborne Lijoodi and based on the following grounds:
a) That the Defendant/applicants herein duly instructed the firm of IRB Mbuya & Company Advocates to come on record in the suit and represent their interests forthwith;
b) That the Defendant/applicant herein is desirous to come on record and as per the judgment dated 4/2/2025, we would like to participate in the mitigation process as this matter has a judgment;
c) That failure to file this application on time was not at all deliberate but an oversight on our part as we have had instructions for one week;
d) That we have had sessions with the Defendants/applicants and what is pending is for us to have a look at all pleadings to enable us represent the Defendants/applicants further in this suit;
e) That no injustice or prejudice will be occasioned to any of the parties if the orders sought are granted;
f) That the Defendants/respondents have requested us to move the court before mitigation is carried out and sentencing;
g) That it is in the interest of justice, fairness and equity for this court to grant the orders sought.
3. The application is opposed by the Plaintiff through a replying affidavit dated 18/3/2025. According to the Plaintiff, the application is incompetent as the supporting affidavit offends Rule 9 of the Advocates Practice Rules, and that the application is an afterthought and an abuse of the court process. To him, the application is an attempt by the Defendants to relitigate the motion dated 27/7/2023 through the back door and that the issues raised should have been raised as a response to the Notice of Motion dated 30/5/2023. The Plaintiff added that the Defendants have not shown that they have purged the contempt by vacating the suit premises as was ordered by the Court on 24/10/2024. The Plaintiff added that the application is an afterthought and it is not clear how the ground status report will assist the court at this point.
4. The application was canvassed by way of written submissions. While the Plaintiff filed written submissions, the Defendants relied on oral arguments presented in court. I have considered the pleadings, the affidavits on record, and the submissions presented.
5. It is not in dispute that the Defendants were found in contempt of court orders and that the matter is currently at the sentencing stage. It is also not in dispute that this is not the first application seeking to stay mitigation and sentencing. A similar request was previously adjudicated upon by this Court and a ruling delivered on 4/2/2025. This application is therefore res judicata, the same having been determined earlier. Courts are not inclined to entertain repeated applications aimed at staying execution or mitigation after a finding of contempt has already been rendered.
6. Further, the request for a ground status report at this stage is misguided. The Court rendered judgment, and the process of execution is underway. The status of the land does not affect the fact that the Defendants disobeyed court orders. The question before the Court is sentencing, not ownership, use, or occupation status of the land. In essence, the application distracts from the real issue before the Court and seeks to reintroduce issues already conclusively determined.
7. The argument that the newly instructed firm requires more time to familiarize itself with the matter cannot be used as a basis to stall judicial proceedings. The Defendants have had ample opportunity to instruct counsel and prepare for mitigation. The administration of justice must not be held at ransom by last-minute litigation tactics.
8. I am therefore persuaded that the application dated 10/3/2025 lacks merit and is an abuse of the court process, and it is accordingly dismissed with costs to the Plaintiff.
Dated, signed and delivered at Malindi via electronic mail on this 18th day of June 2025.