Ndeti & another (Legal representatives of Idah Ndinda Ndeti (Deceased)) v Ndeti & another (Legal representatives of Dr Kivuto Ndeti (Deceased)) (Environment and Land Case Civil Suit 55 of 2015) [2022] KEELC 3590 (KLR)

2 3 2. That judgement be and is hereby entered in favour of the plaintifi as against the defendant in accordance with the arbitrators’ award dated May 13, 1986 which was filed in court and read to parties on September 18, 1986 3. That cost of this application be provided for.” The application was opposed. In a ruling delivered on July 26, 2017, the court allowed the plaintifis’ application and entered judgement in favour of the plaintifis against the defendants in accordance with the arbitrators’ award dated May 13, 1986 together with the costs of the application. Following the entry of judgment as aforesaid, a decree was extracted on September 20, 2017. The decree was on the following terms: 1. “That it would be most unfair to have the plaintifi vacate the property in issue whose common use was granted by the defendant under family arrangements establishing PN Ndeti & Brothers, a limited liability company in which both are shareholders and the company contributed Kshs 20,000/- towards its full acquisition despite its registration in the name of the defendant. 2. That the allotment of the property by equal shares to the plaintifi is not fair unless this is along other properties some of which are not in dispute now. 3. That the defendant be and is hereby restrained from selling, whole or part or otherwise parting with the property LR No 7149/9 registered as IR 1872/2 or evicting the plaintifi from it until such time that PN Ndeti and Brothers a limited liability company is dissolved and each afiorded appropriate shares of the assets forming the family company some of which though registered under individual members of the family have been jointly owned. 4. That the house on the property and which the plaintifi is residing is by all suficient evidence on record the property of the plaintifi. 5. That each party to bear its own costs.” What is now before me is a notice of motion application dated November 27, 2019 by the plaintifis seeking the following orders; 1. That Cecilia Situmai Ndeti and Michael Kyende Ndeti be commited to civil jail for a period of 6 months for disobedience of the ruling delivered on July 26, 2017 and the decree extracted therefrom on September 20, 2017. 2. That the costs of the application be provided for. 4 The application that was supported by the afidavit of Esther Ngondu Ndeti sworn on November 27, 2019 was brought on several grounds. The plaintifis averred that despite being aware of the ruling of the court delivered on July 26, 2017 and the decree extracted therefrom that was duly served upon them, Cecilia Situmai Ndeti and Michael Kyende Ndeti (hereinafter referred to only as “the defendants”) proceeded to subdivide, sell and part with all that parcel of land known as LR No 7149/9, IR 1872/2(hereinafter referred to as “the suit property”). The plaintifis averred that out of a property measuring over 100 acres, the defendants purported to allocate to the plaintifis only 3 acres thereof. The plaintifis averred that the authority and dignity of the court must be protected at all times. 5 The application was opposed by the defendants through separate replying afidavits sworn by Cecilia Situmai Ndeti and Michael Kyende Ndeti on October 20, 2020. The defendants contended that they are the judgment debtors herein while the plaintifis are the decree holders. The defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 2

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contended that the plaintifis had not explained how in their opinion the decree of this court was to be implemented and what action they had taken towards such implementation. The defendants averred that the plaintifis were reluctant to implement the decree and were only ill bent on perpetually harassing the defendants and denying them their constitutional rights. The defendants averred that the High Court had already confirmed the Grant in respect of Dr. Kivuto Ndeti’s estate and that the suit property had been absolutely vested upon Kivusit Holdings Limited (hereinafter referred to only as “Kivusit”). 6 The defendants averred that the plaintifis participated fully in the High Court Succession Cause No 1587 of 2012 in which the said grant was issued and confirmed. The defendants averred that plaintifis also participated in the proceedings in the Court of Appeal in which stay orders were sought against the orders that had been made by the High Court in the said succession proceedings dismissing objections to the confirmation of the said grant. The defendants averred that the plaintifis were the appellants in the said Court of Appeal proceedings. The defendants averred that it was upon confirmation of the said grant in respect of the estate of Dr Kivuto Ndeti that the defendants through Kivusit Holdings Limited in compliance with the decree issued herein carved out for the plaintifis a portion of the suit property on which the plaintifis’ house is situated. 7 The defendants denied that they disobeyed the decree of this court issued on September 20, 2017. The defendants contended that they were not served with the said decree. The defendants averred that Alex Kiilu Ndeti who is one of the plaintifis resides on the said portion of the suit property that was carved out for the plaintifis upon the dissolution of PN Ndeti and Brothers Limited and striking ofi the same from the register of companies. The defendants averred that the plaintifis failed to disclose to the court that PN Ndeti and Brothers Limited had been dissolved and that the suit property did not form part of the assets of PN Ndeti and Brothers Limited. The defendants averred that the plaintifis failed also to disclose to the court the fact that the plaintifis were not evicted from the suit property and that they had refused to receive a title for the portion of the suit property on which their house is standing. 8 The defendants averred that the decree of the court did not state that the suit property was acquired by the plaintifis and the defendants and that the defendants were holding the same in trust for the plaintifis. The defendants reiterated that the plaintifis had not told the court in what manner they wished to have the decree of the court implemented. The defendants averred that the plaintifis’ application was an afterthought and that the same was brought after the plaintifis’ application for injunction in a separate suit to stop the defendants from dealing with the suit property was dismissed. The defendants averred that they dealt with the suit property pursuant to a confirmed grant of letters of administration in respect of the estate of Dr Kivuto Ndeti that was issued by the High Court which the plaintifis unsuccessfully attempted to revoke. The defendants averred that while dealing with the suit property as aforesaid, they took into account the decree of this court. The defendants averred that the plaintifis’ application was an abuse of the process of the court. 9 The plaintifis’ application was heard by way of written submissions. The plaintifis filed submissions dated January 14, 2022. The plaintifis submitted that the defendants were restrained by the decree of this court from selling the suit property. The plaintifis submitted that the defendants in defiance of the said decree subdivided the suit property and registered subdivisions thereof in the name of Kivusit. The plaintifis submitted that the defendants were all along aware of the decree of this court as they not only filed a notice of appeal against the same but also sought interpretation of the same. The plaintifis submitted that personal service of the decree upon the defendants was not necessary in the circumstances. The plaintifis submitted that they had proved that the defendants willfully disobeyed the decree of the court. The plaintifis urged the court to allow the application so as to protect its dignity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 3

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10 The defendants filed submissions dated January 28, 2022. The defendants submitted that the plaintifis had not indicated in what manner they wanted the decree of the court to be implemented. The defendants submitted that the plaintifis in whose favour the decree was made took no steps to execute the said decree. The defendants submitted that the plaintifis had challenged their dealings with the suit property in many forums with no success. The defendants urged the court to dismiss the application by the plaintifis as an abuse of the process of the court. 11 I have considered the plaintifis’ application together with the afidavit filed in support thereof. I have also considered the afidavits filed by the defendants in opposition to the application. Finally, I have considered the written submissions on record. The issues arising for determination in the application before me are whether the defendants breached the decree of this court made on July 27, 2017 and issued on September 20, 2017 and if so, whether they should be punished. 12 In Hardkinson v Hardkinson [1952] ALL ER 567, the court stated that: It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such order would as a general rule result in the person disobeying being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt.” 13 14 In Mutitika v Baharini Farm Ltd. [1985] KLR 227 it was held that: i. “A person who knowing of an injunction, or an order of stay, willfully does something, or causes others to do something, to break the injunction, or interfere with the stay, is liable to be committed for contempt of court as such a person has by his conduct obstructed justice. ii. The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt. iii. The principle must be borne in mind that the jurisdiction to commit for contempt should be carefully exercised with great reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor.” In Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others (2018) eKLR the Court of Appeal set out the law on contempt as follows: It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court in Republic v Ahmad Abolfathi Mohammed & Another (supra). Secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in AB & Another v R B [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v Baharini Farm (supra) and Republic v Ahmad Abolfathi Mohammed & Another (supra).” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 4

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15 In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the court stated as follows: We now revisit the issue of service. Was there service of the order said to have been disobeyed on the respondent? There is no dispute that no formal order was extracted and personally served on the respondent and an afidavit of service filed to that efiect. In that respect, this case can be distinguished from __Justus Kariuki Mate & Another v Hon Martin Wambora (Wambora case) supra cited by learned counsel for the applicant. On the other hand however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under 81.8 (1) (supra). Kenya's growing jurisprudence right from the High court has reiterated that knowledge of a court order sufices to prove service and dispense with personal service for the purposes of contempt proceedings. For instance, Lenaola J in the case of Basil Criticos v Attorney General and 8 Others [2012] eKLR pronounced himself as follows:...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a court order; the strict requirement that personal service must be proved is rendered unnecessary” This position has been afirmed by this court in several other cases including the Wambora case (supra). It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty. .............Would the knowledge of the judgment or order by the advocate of the alleged contemnor sufice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the efiect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” 16 It is on the foregoing principles that the plaintifis’ application falls for consideration. I am not satisfied that the plaintifis have proved a charge of contempt against the defendants for various reasons. As submitted by the defendants, the plaintifis were the judgment creditors while the defendants were the judgment debtors in the decree that was issued by the court on September 20, 2017. This means that the duty was on the defendants to comply with the decree. The defendants have contended that they have complied with the decree of the court. The plaintifis think otherwise. The plaintifis have not told the court how they wanted the decree to be implemented. The plaintifis have accused the defendants of subdividing and selling the suit property contrary to the decree of the court. The suit property had to be subdivided one way of the other. The defendants have contended that after subdividing the suit property, they allocated to the plaintifis a portion thereof where the plaintifis’ house stood. The plaintifis have contended that the suit property measured over 100 acres and that the portion thereof which the defendants purported to allocate to them measured a paltry 3 acres. The plaintifis have not told the court what proportion of the suit property they were entitled to under the decree and how allocation to them of the said 3 acres violated the terms of the said decree. I am not in agreement with the plaintifis that the mere subdivision or sale of the suit property violated the decree of the court. The dispute between the parties was over the division of the suit property. This means that the parties https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 5

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had to divide the suit property one way or another. The decree did not give a formula on how the division was to be done. The defendants did it in the way they thought was proper. I am of the view that the plaintifis had a duty to fault the division by the defendants by profiering an alternative mode of division and justifying the same. The plaintifis have not done so. I have also noted that the defendants were restrained from selling the suit property until PN Ndeti and Brothers was dissolved. The evidence before the court shows that the said company was dissolved in 1997. The plaintifis have not commented on the efiect of this dissolution on the limb of the decree that stopped the sale until the company was dissolved. I am of the view that if the plaintifis felt that the defendants had not implemented the decree in accordance with the terms thereof, their remedy lied on moving the court for appropriate directions or orders to compel the defendants to comply rather than rushing to court for an order for committal. 17 The other reason why I find no merit in the plaintifis’ application and why I agree with the defendants that the same is an abuse of the process of the court is that the plaintifis failed to disclose to the court that they were aware that the defendants were dealing with the suit property pursuant to some orders that were given in Nairobi High Court Succession Cause No 1587 of 2012. The plaintifis had a duty to disclose that they challenged the grant that was issued to the defendants in the said cause in which the suit property was among the assets of Dr Kivuto Ndeti deceased which were up for distribution to his beneficiaries. The plaintifis did not disclose that their application seeking revocation of the said grant was dismissed and that the grant was subsequently confirmed with the suit property being vested on Kivusit. The plaintifi did not also disclose that they filed an appeal against the decision of the High Court dismissing their application and that their application in the Court of Appeal for stay of confirmation of the said grant by the High Court was dismissed. The High Court having made a decision allowing the defendants to deal with the suit property which order has not been varied or set aside, the defendants’ acts of dealing with the suit property pursuant to the said order cannot be said to be contemptuous of the orders that were issued herein. The plaintifis had a duty to bring to the attention of the High Court these proceedings and the decree that was issued herein which I believe they did. The High Court was supposed to consider the same which that court also did. The High Court found no reason to defer to the decree issued herein and dismissed the plaintifis’ application seeking to stop the confirmation of the said grant. I am of the view that having lost in the High Court and having taken the battle to the Court of Appeal, it was not open to the plaintifis to open another battle front before this court. This court has no jurisdiction to vary the orders that were issued by the High Court on the basis of which the defendants subdivided the suit property. 18 I have said enough to show that the application before me is not for granting. That is however not to say that the decree of this court is not to be complied with or implemented. My view is that the implementation is afiected by the orders that were made by the High Court and the Court of Appeal which the plaintifis have to deal with. The plaintifis are also still at liberty to move this court if there is anything more that the court can do for them which will not be in confiict with the said orders made by the High Court and the Court of Appeal. 19 For the forgoing reasons, the notice of motion dated November 27, 2019 is dismissed with costs to the defendants. DELIVERED AND SIGNED AT NAIROBI THIS 21ST DAY OF JULY 2022 S. OKONG’O JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: Mr. Kioko h/b for Mr. Mutua for the Plaintifis https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 6

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Mr. Bundotich for the Defendants Ms. C. Nyokabi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21 7

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