Arusei & another v Tabut & 3 others

i) The Honourable Court issued orders on the 15/8/2023 which directing the Defendant that the status quo with respect to the suit land Nandi/ndalat/584 And Nandi/ndalat/584 585 and thus restraining the Defendants from trespassing thereunto and undertaking illegal developments, the Defendants in blatant disregard of the said Court orders have refused to obey and//or ignored the said orders and have unlawfully encroached onto the suit land despite being dully served and being fully aware of the existence of those Court orders and have unlawful erected a fence around a portion of the subject land parcel and engaged in activities which have fundamentally upset the status quo. 5. In support of the application the Applicant has deponed a supporting adavit, reiterating the grounds in support of the application and has annexed copies of the said Court orders and an adavit of service in respect thereof, photographs of the poles and fencing around. 6. In opposition to the application now under consideration, a replying adavit of Shadrack Kimeli Tabut was led. 7. In the replying adavit, the 1st Defendant/Respondent depones that Mr. Mitei Advocate with the conduct of the matter on behalf of the 1st Plainti/Applicant who had led the applications giving rise to the orders allegedly breached by the Respondents hence the present application for contempt was by virtue of Section 38 and 48 of the Advocates Act not entitled to practice before Court. 8. That the issue of whether the orders ought to have been issued on 15/8/2023 ought to have been heard prior to or along with the contempt proceedings. The deponent depones that Mr. Mitei Advocate is listed as inactive as at 19/09/2023, and has annexed that conrmation as annexture SKTI. 9. It is the Respondents further deposition that the current application does not comply with Section 5 of the Judicature Act and that the rst application dated 31/7/2023 sought for an order to restrain disposal of the said lands, which they have not done, that the alleged fencing o, had been done long before the orders of status quo was issued. 10. That the parcel had not been fenced o and neither had it been sold and annexures SKT3. 11. That the order complained of was issued on 15/08/2023, and in the certicate of urgency fencing o was allegedly done on 10/8/2023. 12. That the application before Court is not specic as the illegal erection of the fence is not clearly stated as from when, where and by who disobeyed the Court orders. 13. That the Applicants claim had muted from Nandi/ndalat/587 to a complaint over Nand/ndalat/585 and Nandi/ndalat/584 hence it is dicult to understand, the Applicants claim. 14. The Applicant further denied service of the orders together with the co-respondents. Leave was granted to the Applicant to le a supplementary adavit; which adavit was led and was deponed by Irine Jepkemboi Advocate. In the said adavit, the deponent stated that the Respondent planted sugarcane and continued building illegal structures. 15. The deponent equally depones on the fact that she had personally conduct of the suit and not the two other Advocates in the rm of Arap Mitei & Co. Advocates. 16. The Court directed the application to be canvassed by way of ling written submissions, both parties did le their submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21643/eng@2023-11-16 2

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Applicants Submission: 17. The Applicant has submitted on the contempt of Court generally and has cited the decision in the case of Kenya Tea Growers Association v Francis Atwoli and 5 others (2012) eKLR. where the Court held interalia, “ I need to cite authority for the proposition that is of high importance that orders of the Courts should be obeyed, willful disobedience to an order of the Court is punishable as a contempt of Court; and I feel no doubt that such disobedience may properly be described as being illegal even if the Defendants thought that the injunction was improperly obtained or too wide in its terms, that provides no excuse for disobeying it. The remedy is to vary or discharge it……..” 18. It is the Applicant’s further submissions while placing reliance on the decision in the case of Basil Criticos v Attorney General and 8 others (2012) eKLR that knowledge of the orders supersedes personal service. 19. On standard of proof, the Applicant submits that the proof is higher than balance of probabilities, but not exactly beyond reasonable doubt; and have cited the case of Mutitika v Baharini Farm Limited (1985) KLR 229. 20. On the strength of the above submissions the Applicant urges the Court to allow the application. Respondents Submissions: 21. In their submissions the Respondents submit that Mr. Christopher Arap Mitei Advocate is an unqualied person within the meaning of Section 9,38 and 48 of the Advocates Act and that the pleadings ought to be struck o. Towards this end the 1st Respondent has cited the Court of Appeal Decision in the case of National Bank of Kenya v Ayah (2019) KLR. 22. The 1st Respondent submits that the order herein was not properly eected, under this head the 1st Respondent submits that the adavit of the Process Server a one Mr. Vincent Ogutu is contradictory at paragraphs 2 and 4 thereof as to how the process server got to know the 1st Respondent. 23. The 1st Respondent further submits that no order was contravened as at 9/8/2023, as the alleged date of entry, yet the orders were issued on 15/8/2023. The 1st Respondent submits that the fencing had been done before issuance of the orders on 15/8/2023. 24. The 1st Respondent further submits that from the application the specic contemnor was not identied, thus the 1st Respondent submits there is nothing specic attributable to any specic Respondents. 25. The Respondent submits that the standard of proof in contempt is beyond reasonable doubt, and submits that the application dated 21/8/2023 be dismissed. 26. Before turning into the issues for determination, a number of issues have been settled by the adavits on record and the Court needs to point out the same. 27. It is common ground, that the Applicants led this suit vide the Originating Summons on 31st July 2023 and simultaneous with ling the Originating Summons a chamber summons application led under a Certicate of Urgency was led and placed before the Duty Judge Hon. Dr. Iur Nyagaka J and no interim reliefs were issued pursuant to the said application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21643/eng@2023-11-16 3

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28. Whereas the chamber summons dated 31/7/2023 was signed by Irine Jepkemboi Advocate, the person who signed the originating summons was not disclosed but the rm of Arap Mitei Advocates drew the Originating Summons. 29. Another chamber summons application dated 10/8/2023 was led on 11/8/2023 and was signed by Irine on 11/8/2023 and was signed by Irine Jepkemboi Advocate of the rm of Arap Mitei Advocates, and the said application was placed before Hon. Lady Justice L. A. Ommollo Duty Judge who issued directions and orders of status quo on 15/8/2023. 30. Thus the orders allegedly breached and subject of the contempt of Court application were thus issued on 15/8/2023. 31. I have analyzed the application before Court, the adavits in support and in opposition, perused the submissions led and the authorities led and have framed the following as issues for determinations. i) whether the pleadings and/or Chamber Summons application giving rise to the orders allegedly breached were drawn by an unqualied person. ii) which acts constitute breach of the Court orders to give rise to contempt of Court, and whether there is contempt of Court? iii) Is the application dated 21/8/2023 merited? iv) What reliefs ought to issue? 31. On issue number 1, as has been observed in paragraph 28 and 29 of this Ruling, the Originating Summons was drawn by the rm of Arap Mitei and Co. Advocates, the Chamber Summons application was signed by Irine Jepkemboi Advocate but equally drawn by the rm of Arap Mitei Advocates. 32. The 1st Respondent in his replying adavit as well as submissions submits that Mr. Christopher Arap Mitei Advocate is not qualied in terms of Section 38 and 48 of the Advocates Act, hence they are no proper pleadings before Court and the 1st Respondent has placed reliance on the decision in the case of National Bank of Kenya v Ndolo Ayah 2019 762. 33. In the supplementary adavit sworn by Irine Jepkemboi Advocate at paragraph 6 thereof, Ms. Jepkemboi Advocate deponed to the eect that she personally signed the documents relating to (this brief) matter as she has personally conduct of the same. 34. Whereas Mr. Christopher Arap Mitei Advocate has not taken out a practicing certicate, the 1st Respondent did not discharge the burden under Section 107 of the Evidence Act that he Mr. Christopher Arap Mitei Advocate personally singed the pleadings in this matter. 35. On the contrary, Ms. Irine Jepkemboi Advocate signed the Chamber Summons application her name appearing on the face of the said Chamber Summons application and she had also deponed to having signed all the other documents in this matter and the Court nds no reason to doubt the said Advocate on her depositions on oath and accordingly nds the objection relating to the drawing of the documents by an unqualied person as unfounded, and that they are proper pleadings before Court signed by Ms. Irine Jepkemboi Advocate whose qualications in terms of Section 38 and 48 of the Advocates Act have not been challenged. 36. On issue number 2, the gravamen of the contempt application is that the Respondents unlawfully encroached onto the suit properties and erected a fence on a portion of the suit property hence https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21643/eng@2023-11-16 4

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fundamentally upsetting the status quo. This is found on ground (b) of the grounds in support of the application. The said breach is also deponed at paragraph 4 of the supporting of Rose Arusei. 37. In his response the 1st Respondent states that on the face of the Certicate of Urgency dated 10/8/2023, the Applicants Advocates alludes to a forceful entry on 9/8/2023 and fencing o a portion of the suit property thereof. 38. The 1st Respondent submits that since the status quo orders were issued on 15/8/2023, and the fencing having been done before the status quo orders were issued, there is no contempt of Court. 39. This above issue was raised in the Replying Adavit, but in the Supplementary Adavit a new issue in terms of breach of the order was introduced, to wit, planting of sugar cane. The issue of fencing o a portion of the suit property was thus abandoned and a new breach of the Court order was introduced. 40. I have looked at the annexures and the record, and I agree with the 1st Defendants Advocates that the fencing was done on or before the 9th August 2023, thus prompting the ling of the application dated 10th August 2023, with the orders been issued on 15/8/2023. Thus, the alleged contempt in terms of the said fencing was done before issuance of the orders on 15/8/2023, and accordingly there have been no Court orders breached by the 1st Respondent necessitating the contempt application before Court. 41. In answer to issue number 2, the actions of fencing having been done before issuance of the orders cannot be said to have breach of the orders and in that regard, the Court nds no contempt to have occurred as pleaded in the application before Court. 42. Having found that the action of fencing the gravamen of the application before Court does not constitute contempt having been done before issuance of the orders, the Court shall not consider issues (iii) and (iv) as the application for contempt is not merited and it is hereby dismissed with costs. 43. The Court notes from the supplementary adavit of Irine Jepkemboi Advocate, that the Respondents may have planted sugar cane on the disputed property, after the orders of status quo were issued and were in force, and if so, the Applicants is at liberty to le a contempt application based on the issue of planting of sugar cane. 44. The upshot is that the application dated 18th August 2023 is hereby dismissed with costs. DATED AND DELIVERED AND KAPSABET THIS 16TH DAY OF NOVEMBER 2023. HON. M. N. MWANYALE, JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21643/eng@2023-11-16 5

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