BRIEF FACTS
The 1st Applicant filed the instant application dated 31st May, 2024 seeking the following orders:
1. THAT this Honourable Court be pleased to order the Defendants/Respondents property be attached and/or that the Respondent be detained in prison for having breached and disobeyed the orders granted by the Honourable Court in Nakuru ELCLA/E 022/2024.
2. THAT the Respondents do further purge the contempt by forcefully removing the 1st appellants properties, vehicles, machineries, goods, materials, chemicals and reagents on the disputed property after the service of the court order of 21% day of MAY, 2024 failing which the Applicant be allowed to return the same at the Respondents cost.
3. THAT the Respondents do further purge the contempt by allowing in the property garage business and or mechanics erecting gates on the disputed property after the service of the court order of 21% day of MAY, 2024 failing which the Applicant be allowed to remove the same at the Respondent’s cost.
4. THAT alternatively the Respondents should be summoned before this Honourable Court to show cause why they should not be detained in prison for disobeying the Honourable Court aforesaid.
5. THAT the OCS Kaptembwa Police station to enforce the terms of the above orders.
6. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of JOHN MWANGI KARANJA the 1st Appellant/Applicant herein sworn on 31st May, 2024.
The Applicant stated that the 1st -3rd Respondents had engaged the services of the 4th Respondent who served the Applicants with an eviction order on 30th April, 2024. He further stated that on 2nd May, 2024 the Respondent moved into the 1st Appellant’s business premises, broke the gates and removed part of his properties. The 1st Appellant stated that he filed an application dated 16th May, 2024 which sought for an injunction order and the same was heard and orders granted on 21st May, 2024. That the process server served the 1st -3rd Respondents the said order. He further stated that on 25th on 26th May, 2024 in blatant breach of the orders, forcefully removed the remaining properties on the suit property and begun construction of the gates despite service of the said orders on 21st May, 2024. He added that on 28th May, 2024 being aware of the implication of the orders threatened that he would have the police arrest the 1st Appellant.
In conclusion, he urged the court to exercise its discretion and issue stay of execution orders.
Response
The Respondents did not file any response.
Submissions
The 1st Appellant filed his submissions on 27th June, 2024 where he identified one main issue for determination, whether the Respondents’ actions are in contempt of court. He relied on the Court of Appeal case of Mutitika V Baharini Farm ltd (1985) KLR 229 and the case of Katsuri Limited V Kapurch and Depar Shar (2016) eKLR that highlighted the four elements that must be met to make a case for contempt. He submitted that on 21st May, 2024 this court issued clear and ambiguous orders including that the status quo be maintained. He further submitted that the Respondents were served with the said order on 24th May, 2024 as evidenced by the return of service sworn by Benjamin Randinga on 3rd June, 2024. He submitted that the same confirmed that the Respondents had knowledge of the court order. He also submitted that the Respondents breached the terms of the court order since the status quo order directed that things remained as they were. He submitted that the Respondents instead removed the 1st Appellant’s properties from the suit property, installed a garage and erected gates. He added that the Respondents also removed a signage that belonged to the 1st Appellant.
The 1st Appellant relied on the case of Abida Werimba Mwaniki & 2 Others V Samwel Njeru M’ngendo & 2 Others [2017] eKLR and submitted that the evidence of the attached photos which the Respondents have not contested was sufficient proof of breach of the orders. He also submitted that the Respondents conduct was deliberate since they failed to give an explanation or denial of having committed the said violations.
In conclusion, the 1st Appellant cited the Court of Appeal case of Shimmers Plaza Ltd V National Bank of Kenya Nairobi Civil Appeal No. 33 of 2012 [2015] eKLR and urged the court to punish the Respondents for breach of the court orders.
Analysis and Determination
This court has considered the application and submission and is of the view that the main issue for determination is whether the Respondents are in contempt of court.
The Black’s Law Dictionary 9th Edition, 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.
Section 29 of the Environment and Land Court provides that;
“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both”
In the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo stated as follows: \' writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-
“there are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases - (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant\'s conduct was deliberate.”
It is not in dispute that this court via orders given 21st May, 2024 ordered that parties maintain the status quo where there would be no interference by either party with the suit land until the appeal was heard and determined. It is also not in dispute that the 1st Appellant served the 1st and 4th Respondent the said order as evidenced by the return of service dated 5th June, 2024. It is not in dispute that the Respondents interfered with the suit premises by removing the 1st Appellants items in disregard of the orders as evidenced from the annexed photographs.
It is noteworthy that the Respondents did not file any response in opposition to the present application and therefore the same remained uncontroverted.
In view of the foregoing, this court has established that the 1st and 4th Respondents were clearly in breach of the court orders issued on 21st May, 2024 since despite being aware of the status quo orders issued, they interfered with the suit premises.
Consequently, this court orders that summons be and is hereby issued against the 1st and 4th Respondents to to attend court on the 8th of October 2024 and explain why they should not be detained and/or fined for disobedience of the orders issued by this court on 21st May, 2024.It is so ordered.
RULING DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF SEPTEMBER 2024.
The 1st Applicant filed the instant application dated 31st May, 2024 seeking the following orders:
1. THAT this Honourable Court be pleased to order the Defendants/Respondents property be attached and/or that the Respondent be detained in prison for having breached and disobeyed the orders granted by the Honourable Court in Nakuru ELCLA/E 022/2024.
2. THAT the Respondents do further purge the contempt by forcefully removing the 1st appellants properties, vehicles, machineries, goods, materials, chemicals and reagents on the disputed property after the service of the court order of 21% day of MAY, 2024 failing which the Applicant be allowed to return the same at the Respondents cost.
3. THAT the Respondents do further purge the contempt by allowing in the property garage business and or mechanics erecting gates on the disputed property after the service of the court order of 21% day of MAY, 2024 failing which the Applicant be allowed to remove the same at the Respondent’s cost.
4. THAT alternatively the Respondents should be summoned before this Honourable Court to show cause why they should not be detained in prison for disobeying the Honourable Court aforesaid.
5. THAT the OCS Kaptembwa Police station to enforce the terms of the above orders.
6. THAT cost of this application be provided for.
The Application was based on grounds set out and supported by the Affidavit of JOHN MWANGI KARANJA the 1st Appellant/Applicant herein sworn on 31st May, 2024.
The Applicant stated that the 1st -3rd Respondents had engaged the services of the 4th Respondent who served the Applicants with an eviction order on 30th April, 2024. He further stated that on 2nd May, 2024 the Respondent moved into the 1st Appellant’s business premises, broke the gates and removed part of his properties. The 1st Appellant stated that he filed an application dated 16th May, 2024 which sought for an injunction order and the same was heard and orders granted on 21st May, 2024. That the process server served the 1st -3rd Respondents the said order. He further stated that on 25th on 26th May, 2024 in blatant breach of the orders, forcefully removed the remaining properties on the suit property and begun construction of the gates despite service of the said orders on 21st May, 2024. He added that on 28th May, 2024 being aware of the implication of the orders threatened that he would have the police arrest the 1st Appellant.
In conclusion, he urged the court to exercise its discretion and issue stay of execution orders.
Response
The Respondents did not file any response.
Submissions
The 1st Appellant filed his submissions on 27th June, 2024 where he identified one main issue for determination, whether the Respondents’ actions are in contempt of court. He relied on the Court of Appeal case of Mutitika V Baharini Farm ltd (1985) KLR 229 and the case of Katsuri Limited V Kapurch and Depar Shar (2016) eKLR that highlighted the four elements that must be met to make a case for contempt. He submitted that on 21st May, 2024 this court issued clear and ambiguous orders including that the status quo be maintained. He further submitted that the Respondents were served with the said order on 24th May, 2024 as evidenced by the return of service sworn by Benjamin Randinga on 3rd June, 2024. He submitted that the same confirmed that the Respondents had knowledge of the court order. He also submitted that the Respondents breached the terms of the court order since the status quo order directed that things remained as they were. He submitted that the Respondents instead removed the 1st Appellant’s properties from the suit property, installed a garage and erected gates. He added that the Respondents also removed a signage that belonged to the 1st Appellant.
The 1st Appellant relied on the case of Abida Werimba Mwaniki & 2 Others V Samwel Njeru M’ngendo & 2 Others [2017] eKLR and submitted that the evidence of the attached photos which the Respondents have not contested was sufficient proof of breach of the orders. He also submitted that the Respondents conduct was deliberate since they failed to give an explanation or denial of having committed the said violations.
In conclusion, the 1st Appellant cited the Court of Appeal case of Shimmers Plaza Ltd V National Bank of Kenya Nairobi Civil Appeal No. 33 of 2012 [2015] eKLR and urged the court to punish the Respondents for breach of the court orders.
Analysis and Determination
This court has considered the application and submission and is of the view that the main issue for determination is whether the Respondents are in contempt of court.
The Black’s Law Dictionary 9th Edition, 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.
Section 29 of the Environment and Land Court provides that;
“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both”
In the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo stated as follows: \' writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-
“there are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases - (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant\'s conduct was deliberate.”
It is not in dispute that this court via orders given 21st May, 2024 ordered that parties maintain the status quo where there would be no interference by either party with the suit land until the appeal was heard and determined. It is also not in dispute that the 1st Appellant served the 1st and 4th Respondent the said order as evidenced by the return of service dated 5th June, 2024. It is not in dispute that the Respondents interfered with the suit premises by removing the 1st Appellants items in disregard of the orders as evidenced from the annexed photographs.
It is noteworthy that the Respondents did not file any response in opposition to the present application and therefore the same remained uncontroverted.
In view of the foregoing, this court has established that the 1st and 4th Respondents were clearly in breach of the court orders issued on 21st May, 2024 since despite being aware of the status quo orders issued, they interfered with the suit premises.
Consequently, this court orders that summons be and is hereby issued against the 1st and 4th Respondents to to attend court on the 8th of October 2024 and explain why they should not be detained and/or fined for disobedience of the orders issued by this court on 21st May, 2024.It is so ordered.
RULING DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF SEPTEMBER 2024.