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JudgmentVICTOR RAMOGI RABURU AND CHRISTOPHER OCHIENG RABURU AND 1 Others VS WILLIAM ODUK SAMBA7 min read

VICTOR RAMOGI RABURU AND CHRISTOPHER OCHIENG RABURU AND 1 Others VS WILLIAM ODUK SAMBA

Environment and Land Court at Kisumu Environment and Land Court · · E. ASATI, J

IN THE REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC (OS) NO. E008 OF 2024

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT (Cap. 22)

AND

IN THE MATTER OF THE LAND REGISTRATION ACT No. 3 of 2012

BETWEEN

VICTOR RAMOGI RABURU…………1ST PLAINTIFF/RESPONDENT

CHRISTOPHER OCHIENG

RABURU………………………..………2ND PLAINTIFF/RESPONDENT

WASHINGTON OLWENY

RABURU………………………..………3RD PLAINTIFF/RESPONDENT

VERSUS

WILIAM ODUK SAMBA………………..…DEFENDANT/APPLICANT

RULING

This ruling is in respect of the application dated 19th August 2024 seeking for orders that; -

  1. The 1st, 2nd and 3rd Respondents be held and found to be in contempt of the court due to their wilful disobedience of the court order issued on 3rd July, 2024.
  2. That the court be pleased to issue a warrant of arrest to the 1st, 2nd and 3rd Respondent herein through the OCS/DCIO Maseno police station.
  3. That the 1st, 2nd and 3rd Respondents dos how cause why they should not be committed to Civil jail failure to which the 1st, 2nd and 3rd Respondents herein be detained in prison for a period of six (6) months or as may be ordered by the honourable court for disobedience of this honourable court issued on 3rd July 2024.
  4. That the honourable court be pleased to issue a permanent injunction restraining the 1st, 2nd and 3rd Respondents herein by themselves, their agents, servants from cultivating or in any   way whatsoever dealing with or interfering with the applicant’s Land No.  KISUMU/NYALENDA/1149 pending hearing and determination of the suit.

The grounds upon which the application was brought are that the Respondents were served with the court order but disobeyed it.  That they unlawfully trespassed and are currently carrying out new cultivation on the suit land in spite of the court order dated 3rd July 2024.

The application was opposed vide the contents of the Replying Affidavit sworn by Victor Ramogi Raburu on 2nd September 2024.  The Respondents’ case is that they have not disobeyed any court orders and the allegations by the applicant are malicious and meant to portray them as people who do not respect court orders.  That they have lived on the suit land for a period of over 40 years and hence the issue of trespass does not arise.  That as at the time of issuance of the court order, they had cultivated maize crop for their subsistence and use. That the photos attached to the application are not a true depiction of the land in question.

The application was argued by way of written submissions.  The applicant relied on the cases of Hadkinson –vs-  Hadkinison  (1952)2,   ALL ER 567, 575 Mutitika  -vs- Baharini Ltd 1985)  KLR  and Econet Wireless Kenya Limited  -vs- Minister of Information Communication of Kenya  & another  (20025) eKLR to support the submissions.

The applicant further submitted that there was no dispute that the Respondents were aware of the order nor is there a dispute that they disobeyed it. He prayed that the court do order that the cited individuals do serve civil jail for a period not exceeding six (6) months and that the Respondents do pay the costs of the application.

On behalf of the Respondents it was submitted that the court order dated 3/7/2024 directed that pending hearing of the suit the status quo relating to the title, use and occupation of the suit parcel of land be maintained by all parties.

That since the applicants brought a case of adverse possession it follows that they are in occupation for the past 40 years and that hence trespass does not arise.  That proceedings of contempt of court order are quasi-criminal proceedings and the degree of proof must go beyond proof on a balance of probabilities. They relied on the case of Mutitika  -vs-  Baharini Farm Limited (1985) KLR 229, 234.

Counsel submitted further that the application leaves lots of uncertainties that must be held to the benefit of the Respondents. Counsel relied on the case of Alfred Mutua -vs- Boniface Mwangi (2022)e KLR to support this submissions. Counsel urged court to dismiss the application.

I have considered the application, the response thereto and the submissions filed by both parties.  Contempt of court in a civil case is the wilful disobedience or breach of a court order, decree or judgement, or direction or other process of a court or wilful breach of an undertaking given to the court.

The court set out the element of contempt of court in the case of Johari School Limited –vs- Rosemary Wambungu t/a Johari School (2021) eKLR to be; -

  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 and
  4. that the conduct of the Respondent was deliberate or wilful.

In the present case, the applicant’s contention is that there is a valid court order made on 3rd July 2024.  Annexed to the application was a copy of court order issued on 3/7/2024 by Justice Okongo. The order reads; -

“1. That pending the hearing of the suit herein, the status quo relating to the title, use and occupation of the parcel of land KISUMU/MARERA/1149 shall be maintained by both parties.

  1. That for avoidance of doubt the applicants in the Originating Summons shall not cut down or uproot any trees on the suit property and shall also not plant new trees, they shall also not put up new structures on the suit property or carry out any new cultivation.
  2. That the matter shall be mentioned before Asati J on 24/9/2024 for further directions on the hearing of the Originating Summons.”

On whether or not the Respondents had knowledge or notice of the order, the Respondents do not deny knowledge or notice of the same.  They state in paragraph 7 of the Replying Affidavit sworn by Victor Ramogi Raburu on 2nd September 2024, that they knew that the orders issued by Hon. Justice Okong’o comprised, inter alia, orders of status quo and that no new cultivation was to take place and that they had duly complied with the orders.

The applicant’s complaint is that the Respondents had breached the court order by unlawfully trespassing and are currently carrying out new cultivation of the suit land No. KISUMU/MARERA/1149 despite the court order dated 3/7/2024.  To prove the trespass, the applicant swore a Supplementary Affidavit on 11th September 2024 to which he attached copies of latest pictures.  The Respondents’ response was that they had not breached the court order and that the photographs exhibited before court had nothing to show that they  were taken on the suit land. That there was nothing on the photographs to show that the activities shown on the photographs depict recent cultivations.

It is the correct position in law as submitted by Counsel for the Respondents that contempt of court proceedings are quasi-criminal in nature and the standard of proof therefor is higher than proof on a balance of probabilities.

In the case of Githiga & 4 Others -vs- Kiru Tea Company Ltd (petition 13 of 2019) (20023) KESC 41 (KLR) (16 June 2023) Judgment, the Supreme Court held that:

‘Due to the quasi-criminal nature of contempt proceedings and the gravity of the consequences that flowed from contempt proceedings courts require to adhere to the principle of natural justice, procedural fairness and the right to be heard….. because contempt proceedings being quasi-criminal required a higher standard of proof than in normal civil cases and could only be committed to civil jail or penalised on the basis of evidence that left no doubt to the contemnors culpability’

The applicant’s prayer herein is that the Respondents be committed to civil jail for a period not in excess of six (6) months. This no doubt is a serious sanction sought to be imposed on the Respondents.

I have seen the photographs attached to the Supplementary Affidavit which are intended to demonstrate the new cultivations. As contended by the Respondents there is no evidence to show that the photographs are indeed of the suit land and depict activities that took place after the court order and in contempt of the court order.  I find that the evidence does not meet the standard of proof required. The burden of proof is with the applicant and I find that he has not discharged the same.

In addition to the prayer for committal to jail of the Respondents for contempt of court, the applicant also sought for an order of permanent injunction pending hearing and determination of the suit.  I find that the prayer is not available as the court already handled and decided the applicant’s application for injunction herein resulting in the court order dated 3/7/2024.

I find that the application lacks merit.  The application is hereby dismissed. Costs to the Respondents.

Orders accordingly.

Ruling dated and signed at Kisumu, read virtually this 24th day of October 2024 through Microsoft Teams online application.

E. ASATI,

JUDGE.

In the presence of:

Ann & Alex- Court Assistant

The applicant in person

The 1st and 2nd Respondents in person.

    VICTOR RAMOGI RABURU AND CHRISTOPHER OCHIENG RABURU AND 1 Others VS WILLIAM ODUK SAMBA VICTOR RAMOGI RABURU AND CHRISTOPHER OCHIENG RABURU AND 1 Others VS WILLIAM ODUK SAMBA