RODAH MASISTSA AND BIRISIRA LUNGAZO AMUSALA VS HAROUN SHIAVA AMUSALA ALIAS HARUN SHIABA ALIAS CLEMENT SHAVA AMUSALA

This Ruling is in respect of two applications namely; - The Notice of Motion application dated 3^rd September 2024 and the Notice of Motion application dated 16^th September 2024.

The application dated 3/9/2024

The Notice of Motion application dated 3^rd September 2024 brought by the appellants was expressed to be brought pursuant to the provisions of sections 1A & 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Act.

It seeks for orders that;

1. The 1^st , 2^nd , 3^rd, 4^th and 5^th Contemnors be adjudged as being in contempt of the honourable court on account of willfully disobeying the Judgment and/or decree given by the honourable court in this suit and for willfully frustrating the implementation of the said judgment and/or decree. Upon being so adjudged each of them be sentenced to pay an appropriate fine not exceeding Kshs 200,000/= and/or to serve a term of imprisonment not exceeding 6 months.
2. The OCS Cheptulu Police Station to help in offering security to the surveyors appointed by the appellant to sub-divide land parcel NO. KAKAMEGA/BUMBO/512 and KAKAMEGA/BULUKHOBA/543 as decreed by the honourable court.
3. That the cost of survey, sub-division and distribution of land parcel numbers KAKAMEGA/BUMBO/512 and KAKAMEGA/BULUKHOBA/543 as per the Judgment and decree of this honourable court be share equally amongst the four benefices namely Rodah Masitsa, Birisira Lungazo Amusala. Clement Sheva Amusala and Ester Shitolwa.
4. The costs of the application be borne by the 1^st, 2^nd, 3^rd, 4^th and 5^th Contemnors jointly and severally.

The Application is based on the grounds on the Notice of Motion and the averments in the Supporting Affidavit sworn by RODAH MASITSA on 2^nd September 2024.

Directions were given on the disposal of the two applications on 18/9/2024, inter alia, that the applications be canvassed simultaneously by way of written submissions and parties were given timelines within which to file appropriate response to the respective applications and written submissions thereon.

As at the date hereof, there is no response to the application dated 3/9/2024.

Counsel for the applicant indicated to the court that he will rely on the contents Notice of Motion and the supporting Affidavit and will not be filing any written submissions.

The sustentative prayer sought in the application is punishment of the Contemnors for being in contempt of court. Contempt of court in Civil proceedings is the willful disobedience or breach of a court order, decree or judgment or directions or other process of a court or willful breach of an undertaking given to the court.  The element of contempt of court are;

1. the existence of a valid court order whose terms are clear, unambiguous and binding on the Respondent,
2. proof that the Respondent had knowledge or proper notice of the terms of the order,
3. proof that the Respondent acted in breach of the terms of the order
4. that the conduct of the Respondent was deliberate or willful.

The applicants aver that Judgment was delivered in this case on 13/6/2024. That in early July 2024 the 1^st and 2^nd Respondents were served with the copies of the Judgment under cover of Advocate’s letter requesting them to voluntarily commission the survey and sub- division in line with the judgement. That the 1^st and 2^nd Respondents refused to do as requested.  That on the date appointed for survey, the 1^st, 2^nd, 3^rd, 4^th and 5^th Contemnors convened on land parcel number KAKAMEGA/BULUKHOBA/543 and threatened to cause bodily harm to the appellants, Surveyor, area Chief and whoever else would attempt to survey and sub-divide the land.  That on 6/8/2024 the 3^rd, 4^th and 5^th Contemnors   supported the stance of the 1^st and 2^nd contemnors that hence the survey was consequently postponed to 20/8/2024 on which day again the 3^rd, 4^th and 5^th Contemnors mobilized a group of people for violence thereby forcing the survey team to flee.

That the contemnors are determined to belittle the judgment of the court and to undermine the authority of the court.

From the narration of the applicant and from the court file, there is a judgment delivered by the court on 13/6/2024.  The court record shows that none of the parties were present when the Judgment was delivered.  That soon after delivery the judgment was published on the e-filing portal for ease of access by the parties.

No evidence has been availed that the contemnors were served with a copy of the judgment or consequent decree.  There is no evidence that the contemnors had personal knowledge of the judgment.

Secondly, no evidence has been placed before this court on the contemptuous acts and omissions of the contemnors.  There is no evidence that there were survey exercises scheduled as deposed in the Supporting Affidavit or that the contemnors interfered with the same.  The threshold of proof required in contempt proceedings is higher than that in civil cases and punishment for contempt is on the basis of evidentiary proof that leaves no doubt as to the contemnor’s culpability -see Mwangi H.C Wangondu vs Nairobi City Commission, Nairobi Civil Appeal No. 95 of 1998.

In the present application I find that the threshold has not been met. 

The application dated 16/9/2024

The Notice of Motion application dated 16/9/2024 by the Respondent was expressed to be brought pursuant to the provisions of sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 Civil Procedure Rules, 2010.

The application seeks for orders that; -

1. The court be pleased to order a further stay of proceedings and execution of the judgment and consequent orders emanating therefrom delivered on 13^th day of June 2024 pending the hearing of the intended appeal at the Court of Appeal.
2. That the status quo of the delivery of the court’s judgment on 13^th June 2024 in respect of L.R No. KAKAMEGA/BULUKHOBA/543 be maintained.
3. The costs of this application be provided for.

The grounds upon which the application was brought were that the applicant has preferred an appeal against the judgment delivered herein on 13/6/2024, that the Respondents have on several occasions threatened to forcefully sub-divide the suit properties and that they have on two occasions visited the suit land with goons.

That the applicant is a person living with disability.  That the appeal raises triable issues and that it is only fair that the outcome be awaited as it may be rendered nugatory. The application was supported by the averments in the Supporting Affidavit of Aaron Clement Shava.

The application was opposed vide the grounds of opposition dated 18^th September 2024.  The appellants’ case is that the application is an afterthought and a reaction to the appellants’ application dated 3/9/204.  That no appeal has been filed and no Notice of Appeal had been formally lodged.  That no leave to appeal out of time had been sought.  That the application is an abuse of the court process aimed at delaying execution of the judgment and decree.  The appellants prayed that the application be dismissed with costs.

I have considered the application and the grounds in opposition thereto. Though directions were given for filing of written submissions on the application, no written submissions were filed.

Order 42 Rule 6 provides for the grounds for grant of an order of stay of execution  as follows:

“No order for stay of execution may be made under sub rule (1) unless-

1. The court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay and
2. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

  None of thses grounds have been demonstrated.  Although the applicant averred that he had filed an appeal to the Court of Appeal there is no evidence of the same.  The copy of Notice of Appeal annexed to the Supporting Affidavit and dated 7/9/2024 has no evidence on it that it has been lodged with the Deputy Registrar. It is unstamped/sealed, unsigned and undated by the Deputy Registrar.

Under the provisions of order 42 Rule 6(4)

“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that court Notice of Appeal has been given”

There is no evidence that a Notice of Appeal has been lodged in accordance with the Rules of the Court of Appeal Rules.

There being no appeal filed, there is no basis upon which the court can grant an order of stay of execution or stay of proceedings. 

I find that both applications lack merit. They are hereby dismissed. Each party to bear own costs of the respective application.

Orders accordingly.

Ruling, dated and signed at Vihiga, read virtually this 13th February 2025 through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi- Court Assistant.

Balusi for the Appellants.

Chitwah for the Respondent.