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JudgmentIn the Estate of SAMMY MUNUVE9 min read

In the Estate of SAMMY MUNUVE

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

1. On 30/08/2021 the Hon. Dulu J. made the following orders:

  1. That the application be served forthwith for inter-parties hearing.
  2. That the respondent granted 7 days from service to file response hereto.
  3. That mention on 27/09/2021 fixed by the Deputy Registrar for directions.
  4. That interim injunction orders issued restraining the 1st petitioner (Michael Mutinda Munuve) or any other person acting under authority from trespassing, charging, fencing, disposing,  selling, allocating, transferring, charging and /or in

anyway dealing with all that portion of the land belonging to Duncan Kaleli Munuve allocated to him by the deceased comprised in all that parcel of land known as Kathonzweni/Kwa Kavisi/715.

2. On 17/09/2021 the applicant Duncan Kaleli Munuve filed Notice of Motion under section 1A, 1B, 3A and 63(e ) of the  Civil Procedure Act, Order 40 Rule 3 of CPR seeking orders:-

  1. That this application be certified as urgent and service of the same be dispensed with at the 1st instance.
  2. That Notice to Show Cause do issue to Michael Mutinda Munuve to show cause why he should not be committed to civil jail for a period of six (6) months for contempt of court orders issued on 30/08/2021.
  3. That the respondents be committed to civil jail for a period of six (6) months for contempt of court orders issued on 30/08/2021.

3. The application was brought on the following grounds:

  • That a copy of the order together with the penal notice was served upon the Michael Mutinda Munuve on the 31/08/2021.
  • That in utter disregard of the orders issued by the court Michael Mutinda Munuve failed, ignored and/or neglected to comply with the court orders issued and continued to trespass onto the objector/applicant’s portion of all that land registered as Kathonzweni/Kwa Kavisi/715 and to cause wanton destruction thereon by continuing to build thereon.
  • That the blatant refusal to obey valid court orders amounts to contempt of court.
  • That unless the orders sought are granted Michael Mutinda Munuve shall continue to disregard the orders of this court to the detriment of the applicant.

4. The application is supported by the affidavit of the applicant sworn on 13/09/2021 to the effect:

  1. That he is the objector/applicant hence competent to depone herein.
  2. That he is one of the objector/applicants’ herein and he has the consent of his co-applicant to make the affidavit on her behalf hence competent to depone hereto.
  3. That he is the son to the late Sammy Munuve Nganyi who passed away on the 14/08/1994.
  4. That the deceased was the registered owner of all that parcel of land known as Kathonzweni/Kwa Kavisi/715 and Kathonzweni/Kwa Kavisi 673.
  5. That Kathonzweni/Kwa Kavisi/715 was sub-divided amongst myself, Musyoka Munuve and Michael Mutinda Munuve.
  6. That Michael Mutinda Munuve trespassed onto his portion of all that land registered as Kathonzweni/Kwa  Kavisi/715 and started building a house there.
  7. That being dissatisfied with the actions of the said Michael Mutinda Munuve he filed the application dated 25/08/2021 which was heard on the 30/08/2021 and interim injunction orders issued against the  petitioner/respondents either by themselves, their authorized agents, servants, employees and/or any person acting under their authority from trespassing, charging, fencing, disposing, selling, allocating, transferring, charging and/or in any way dealing with all that portion of the land belonging to Duncan Kaleli Munuve allocated to him by the deceased comprised in all that parcel known as Kathonzweni/Kwa Kavisi/715.
  8. That on the 31/08/2021 the petitioner/respondent was served with the said court order and penal notice which he accepted service but declined to sign.
  9. That despite the defendant/respondent being served with the said court orders the defendant/respondent has failed, ignored and/or neglected to obey the court order issued and has continued to trespass onto his portion of Kathonzweni/Kwa Kavisi/715 and has continued to cause wanton destruction thereon by continuing to build thereon.

5. Attached to the application are 8 photos.

6. The application is opposed vide the replying affidavit of Michel Mutinda Munuve sworn on 17/11/2021.

7. The respondent denies the allegations made against him and proceeds to demonstrate that it is the applicant who is a trespasser on the said parcel of land and not the respondent; He states that the applicant moved into the respondent ‘s late mother’s matrimonial home forcefully leading to family crisis and the matter was reported to the clan, the chief’s and DO’s offices. That the clan affirmed that position that the respondent was the trespasser directing him to move back to his home at Kathonzweni/Kwa Kavisi/673. That there was a civil suit RMCC 208/2009 – Makueni where the applicant was barred from burying his brother on the suit land.

8. Parties filed submissions

9. For the applicant it is submitted that contempt of court is that conduct or action that defies or disrespects authority of court. He cites Black’s  Law Dictionary 9th Edition, which defines contempt as:

“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”

10. He relies on Econet Wireless Kenya Ltd V Minister for Information & Communication of Kenya & Another [2005] KLR 828, where Ibrahim, J. (as he then was) underscored the importance of obeying court orders, stating:

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors it is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular to void.”

11. It is submitted that when the orders of injunction were issued by the court on the 30/08/2021, the same were served upon the respondent on the 31st day of August 2021 and an affidavit of service was filed. That the same court order was served upon the respondent’s counsel on the 25th September 2021. That the respondent at all material times was aware and had knowledge of the injunction orders but chose to disobey them.

12. It is futher submitted that in Oilfield Movers Ltd –vs- Zahara Oil & Gas Limited [2020] e KLR the court stated:

“It is important however that the court satisfied itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained on with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quiet high as it involves possible deprivation of a person’s liberty …”

13. The court is urged to find the respondent in contempt and allow the application as prayed. The applicants rely on Wiliam Gatheca Nguyo vs- Francis Kariuki Muthee & Another [2019] e KLR where the court observed that:-

“To protect the dignity and authority of the court of law, this court, shall be firm on any person who deliberately disobeys court orders or attempts to scuffle the court processes”.

14. For the respondent it is submitted that the only issue for determination is: Whether the NTSC should issue to Michael Mutinda Munuve to show cause why he should not be committed to civil jail for a period of six (6) months for contempt of court orders issued on 30/08/2021.

15. It is submitted that the photos do not show any evidence of contempt or when the a alleged actions were carried out by the respondent; that there is no evidence of personal service, and that the threshold for contempt has not been met.

16. It is further submitted that that there are three elements that must be proved in contempt proceedings:

  1. Applicant must demonstrate terms of order.
  2. Applicant must demonstrate knowledge of terms by respondent
  3. Applicant must demonstrate failure of respondent to comply with court order.

17. On the issue of personal service it is submitted that there is no evidence of prior knowledge of existence of the orders by the respondent save for the process server stating that the respondent declined to sign on the principal copies, no evidence was adduced either to show the orders were served on the respondent any other means eg  whatsapp or email or otherwise and thus the issue of service of orders on the respondent remains unsubstantiated. Reliance is placed reliance on Woburn Estate Limited vs- Margaret Bashforth [2016] e KLR where the Court of Appeal had this to say:

“The last argument by the appellant, which is clearly now superfluous after the foregoing finding, is the question of extraction of the decree and order and their personal service on the appellant. This court in two recent successive decisions in Christine Wangari Wachege (supra) and Shimmers Plaza Limited (supra) explained in extensor the procedure in commencing and prosecuting an application for contempt of court under the English Civil Procedure Rules, 1999. Part 81.9(1) of those rules, in particular, a judgment or an order to do or not to do an act may not be enforced unless the copy of the judgment or order was previously displayed and served, that the person required to do or not to do the act in question is warned that disobedience of the judgment or order would be a contempt of court, punishable by imprisonment, a fine or sequestration of assets, but the court can dispense with service. Otherwise a judgment or order may not be enforced unless a copy of it has been served on the person required to do or not to do the act in question. Under Rule 81.6, and a general rule, service of the judgment or order must be personal on the contemnor unless the court dispenses with the requirement. Exceptions to that rule are found in Rule 81.8 to the effect that personal service will be dispensed with if the court is satisfied that the contemnor was present when the judgment or order was given or made, if the contemnor was notified of its terms by telephone, email or otherwise or if the court thinks it is just to dispense with service. There has been little change in this requirement since the decision of this court in Ochino & Another V Okombo & Others [1989] KLR 165. The court may also make an order in respect of service by alternative method or at an alternative place.

In the matter before us, the appellant has alleged that the order was not served personally on it nor was there dispensation with such service. The respondent’s answer to this was that as a lay person she is not versed in legal procedures. It is therefore uncontroverted that the judgment of 16th April 2013 and the order of 31st March 2014 were not served on the appellant.

18. It is further submitted that contempt proceedings are  quasi – criminal in nature and a person could  lose his right to liberty, hence each stage and step of the procedure must be scrupulously followed and observed. To that end the court is referred to Lord Denning in Re Brambevale ltd [1970] I CH 128 at page 137 that;

“A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.”

19. The court is urged to find that there is no evidence that the  respondent had knowledge of the subject orders and decline to allow the application and dismiss it with costs.

20. From the foregoing the only issue for this court is whether there is proof of contempt. To arrive at that the applicant must establish knowledge by the respondent of the existence of the order and the penal notice?

21. The order of 30/08/202, issued on 31/08/2021 was made exparte in chambers.  It is alleged that the respondent was served on 31st August 2021 and declined to serve service. This is denied and there is no proof of the same

To be held in contempt the applicant ought to have made very endeavour to serve in a manner that was provable in court. As it s the service is denied and there is nothing tangible to support the allegation of service.

22. It is intended to prove the contempt through the photos attached to the application. These photos are just that: photos. They bear no dates, they show walls and people but one cannot see the contempt, they do not answer to the saying that a photo is worth 1000 words.

23. In the circumstances the application for contempt does not fulfil the requirements. It is declined and dismissed with costs to the respondent.

Dated signed and delivered 31st May 2024

……………………………….

MUMBUA T. MATHEKA

JUDGE

    In the Estate of SAMMY MUNUVE In the Estate of SAMMY MUNUVE