The plaintiff has come to court vide the application dated 29th October 2024 seeking orders that the 3rd Defendant be cited to show cause why he should not be committed to civil jail for a period of six (6) months for willful disobedience of the court order issued on 23rd September, 2024. On failing to show cause under (2) above, the Honorable Court be pleased to punish the 3rd Defendant by sentencing him to civil jail and imposing a fine as the court may deem appropriate.
The costs of this application be borne by the 3rd defendant.
The application is based on grounds that by the application dated 12th September 2024, the Plaintiff moved this Honorable court for an order to compel the 3rd Defendant herein to furnish the Plaintiff with the necessary documentation from the Lands Registry to establish why Land Reference No. 12866 (9514/1/1/) Grant Number 20862/3 was surrendered to the Government in 1987 and documents relating to the creation of Dundori/Miroreni Block 2/65 and the subsequent subdivision thereof into 137 parcels numbered 66-202 from the 3rd Defendant for purposes of relying on them in Court during trial.
On 23rd September, 2024 Honorable court granted an order directing the 3rd Defendant to produce the correspondence files relating to Land Reference No. 12866 and Dundori/Miroreni Block 2/65 for the inspection of the Court and by the Plaintiff within 10 days and to produce the green card in respect of Dundori/Miroreni Block 2/65. Moreover, to produce the mutation forms and the sub-division plans for the sub-division of Dundori/Miroreni Block 2/65 into 137 parcels numbered 66-202.
On 2nd October, 2024, the 3rd Defendant was served with the Court order issued on 23rd Septembers 2024 through the 4th Defendant. On 16th October, 2024, the 3rd Defendant was served with the penal notice dated 16th October, 2024 through the 4th Defendant Despite being served, no step/action has been taken by the 3rd and 4th Defendants herein
The 3rd Defendant was then personally served with the Court order and the penal notice through his office and through his personal email on 24th October, 2024. However, despite personal service, the 3rd Defendant has blatantly failed, refused and/or declined to produce the documents outlined in the order issued on 23rd September, 2024. According to the applicant, there is real danger that the 3rd Defendant will continue with the blatant disobedience of this Court's orders unless restrained by this Honorable Court. It is therefore necessary that the orders sought are granted to protect the rule of law, the dignity of the court, and confidence in the judicial system that court.
The applicant is apprehensive that unless this application is heard and appropriate sentence meted on the 3rd Defendant, he will continue ignoring the court orders and bring the administration of justice into disrepute. The supporting affidavit by Anne Wangari Wachira, one of the directors of the plaintiff reiterates the grounds of the application.
In the replying affidavit, George Githongo a Land Registrar based at the office of the Chief Land Registrar states that the Land reference No.9514 (Grant (IR 20862) was surrendered to the Government of Kenya in consideration of approval of a subdivision scheme. The surrender instrument was registered on 30th September 1987 and that the effective Land Register is held at the Land Registry at Nakuru.
That the Chief Land Registrar is not the custodian of the correspondence file of L.R 12866 as the lands record are maintained by the Director Land Administration.
Emma C Sitienei, a Land Registrar states that the parcel file with regard to land parcel Dundori/Miroreni/Block 2/65 was opened on 4/11/1997. The mutation form in the parcel file is missing. However, she annexed copies of documents in the parcel file.
Anne Wangari Wachira filed a further affidavit stating that the Chief Land Registrar had the powers to avail the parcel file from the Director Land Administration.
The applicant submits that the Plaintiff has met the first hurdle proving that court order dated 23rd September 2024 is clear and directed the 3rd Defendant to produce the correspondence files relating to Land Reference No. 12866 and Dundori/Miroreni Block 2/65 for the inspection of the Court and by the Plaintiff within 10 days. Produce the green card in respect of Dundori/Miroreni Block 2/65. Produce the mutation forms and the sub-division plans for the sub-division of Dundori/Mroreni Block 2/65 into 137 parcels numbered 66-202.
Counsel for the applicant submits that the applicant has met the 2nd hurdle because paragraphs 5 and 7 of the supporting affidavit by Anne Wangari shows efforts taken by the Plaintiff to serve upon the 4th Defendant and personally to the 3rd Defendant with the court order of 23rd September 2024
The third hurdle according to the applicants counsel is that the defendant has acted in breach of the court order while the fourth hurdle is that the conduct must be deliberate and mala fide, or in bad faith.
The Defendant has failed to comply with the terms of the order since he has refused to produce the Correspondence files relating to Land Reference No, 12866 and the Green card in respect of Dundori/Miroreni Block 2/65, Mutation forms and the subdivision plans for the sub-division of Dundori/Miroreni Block 2/65 into 137 parcels numbered 66-202.
The honourable Attorney General on behalf of the 3rd Defendant /respondent submits that the 3rd Defendant immediately responded by sending the documents in its custody in relation to Land Reference 9514(Grant IR 20862) to the 4th Defendant and by further directing that they write to the Nakuru Land Registry in relation to Dundori/Miroreni Block 2/65. Therefore, the 4th Defendant cannot confirm whether there was proper service of the court orders and/or the penal notice upon the 3rd Defendant to comply with the same.
The Attorney General contends that, through the Affidavit of Mrs George Gitonga, the 3rd Defendant states that since Land Reference 9514 (Grant IR 20862) was surrendered to the Government of Kenya for consideration of the approval of a subdivision scheme, the effective Land Register is as held by the Land Registry at Nakuru as Dundori/Miroreni Block 2/65 and that the Chief Land Registrar is not the custodian of the correspondence File pertaining to Land Reference 12866 as these Land Records are as maintained by the Director, Land Administration.
Secondly, through the Replying Affidavit dated 19th November, 2024, sworn by Emma C, Sitienei who is a Land Registrar based at the Nakuru Land Registry, the 3rd defendant has produced all the documents contained in the parcel file with respect to and parcel Dundori/Miroreni Block 2/65 from the date it was opened on 4th November, 1987. However, the Nakuru Land Registrar states that she was unable to trace the mutations forms in the said parcel file.
From the foregoing, the Attorney General argues that it is evident that the 3rd Defendant has complied with the Court order issued on 23 rd September, 2024.
The gist of the Attorney Generals argument is that there is no proof of deliberate disobedience of the court orders on the part of the 3rd Defendant. That the 3rd Defendant is a law-abiding public servant who respects the authority of this honorable court and will therefore not act in a manner that will undermine the same.
This court has discerned the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & another C.A No. 24 of 2014 where it was held that a court must satisfy itself beyond any shadow of a doubt that the person alleged to be in contempt committed the acts complained of with full knowledge or notice of the existence of the order of the court, forbidding it since the threshold involves possible deprivation of a person’s liberty. Contempt proceedings are coercive and or punitive yet very important in the administration of justice.
The standard of proof is higher than proof on a balance of probabilities. The ingredients of contempt must be met. As held in Samuel M. N. Maweu & others v National Land Commission (2020) eKLR the principles for an applicant before the court to be found guilty of contempt of court, the applicant must prove:-.
i.The terms of the order were clear, unambiguous and binding on the citees.
ii.The citees had knowledge of or proper notice of the terms of the order.
iii.The citees acted in breach of the terms of the order.
iv.The conduct was willful and deliberate.
I have considered the application, replying affidavit and rival submissions and do find that the order of the court was duly served upon the Chief Land Registrar. The Chief Land Registrar has supplied the documents under his custody and has explained to the satisfaction of the court the person in custody of the Parcel file sought by the plaintiff is the Director of Land Administration. There is no proof that the Chief Land Registrar has wilfully and deliberately disobeyed a court order. The application is dismissed with costs.