Criticos & another v AIC Makutano & 66 others (Environment & Land Case 3 of 2024) (Environment and Land) [2024] KEELC 4732 (KLR)

JAMES FRED NEWTON WANDERA ........................................ 16TH DEFENDANT MBUYUNI WOMEN GROUP ORGANIZATION ..................... 17TH DEFENDANT SABASTIAN LETIMIANE MWACHILA .................................... 18TH DEFENDANT PETRO CHIKIRA EDWARD ...................................................... 19TH DEFENDANT EDWARD RASHID MAKORE .................................................... 20TH DEFENDANT JACKSON MATANO FUNDI ....................................................... 21ST DEFENDANT NZIOKI MUTUA MBULU ........................................................... 22ND DEFENDANT BAHATI KINYOKA ...................................................................... 23RD DEFENDANT PROTUS A. SEBORU .................................................................... 24TH DEFENDANT MUSA SALERI FUNDI ................................................................. 25TH DEFENDANT JOSEPH SALERI FUNDI .............................................................. 26TH DEFENDANT DENNIS MWANGEKA MOMBO ................................................ 27TH DEFENDANT JANET CHILUMO MBWANA ..................................................... 28TH DEFENDANT PASCAL SIO MTULA ................................................................... 29TH DEFENDANT MARTIN MRAMBA ..................................................................... 30TH DEFENDANT NUHU LAYONI ABDULRAHAMAN ......................................... 31ST DEFENDANT MWANATUMU HAMISI .............................................................. 32ND DEFENDANT JARED ONYANSI NYAUNDI ...................................................... 33RD DEFENDANT CLEMENT LENJO ......................................................................... 34TH DEFENDANT ANNABEL RADUMA OJOO ....................................................... 35TH DEFENDANT LIVERSON MARORO .................................................................. 36TH DEFENDANT LINNET NGELE IDAWO ............................................................. 37TH DEFENDANT MWAKULOMBA P. SHETE ......................................................... 38TH DEFENDANT JOSEPH M. MWACHILA .............................................................. 39TH DEFENDANT GODWIN MWITI MUGIRA ........................................................ 40TH DEFENDANT ELINA JOHANA MWACHIA ....................................................... 41ST DEFENDANT CHALLA CHEMICALS INTERNATIONAL LIMITED ........... 42ND DEFENDANT DENIS N MUNYI .......................................................................... 43RD DEFENDANT MICHAEL WISO ............................................................................ 44TH DEFENDANT ALFRED ISAACK MNYANYA .................................................... 45TH DEFENDANT CORNEL KINYILI KONGO ........................................................ 46TH DEFENDANT CAROLINE EDINA ATIENO ADHOLA .................................... 47TH DEFENDANT https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14 2

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JOHN J SWAI ................................................................................. 48TH DEFENDANT JOHN MUTUA MWANGI ............................................................ 49TH DEFENDANT MARK NGWATI MBITHI ............................................................ 50TH DEFENDANT CHEMOMOBO TECLAH MUKHEBET ...................................... 51ST DEFENDANT ERASTUS A MAROO ................................................................... 52ND DEFENDANT PAUL MWASARU MWAZUMO .................................................. 53RD DEFENDANT JESMILY WAKESHO MWAZUMBO ........................................... 54TH DEFENDANT NIORAM HOLDINGS LIMITED ................................................ 55TH DEFENDANT JAPHET MNDAMBO BASHARI ................................................. 56TH DEFENDANT TOLOWA RAMAITA .................................................................... 57TH DEFENDANT RENNISON A. MWADIME .......................................................... 58TH DEFENDANT RUTH KAMEME ........................................................................... 59TH DEFENDANT JACKSON KIMIRI MSUYA ......................................................... 60TH DEFENDANT MATENGE K NGAU ...................................................................... 61ST DEFENDANT MUTUA MBITHI MBURU .......................................................... 62ND DEFENDANT EPHRAIM NGORIO SIMEON .................................................... 63RD DEFENDANT BENSON KISOMBE MSULA MBEDE ........................................ 64TH DEFENDANT LAND SETTLEMENT FUND BOARD OF TRUSTEES (FORMERLY KNOWN AS THE SETTLEMENT FUND TRUSTEES) ............................. 65TH DEFENDANT THE CHIEF LAND REGISTRAR ............................................... 66TH DEFENDANT THE DISTRICT LAND REGISTRAR, TAITA TAVETA .......... 67TH DEFENDANT RULING 1. The Plaintifis have moved this court vide an application dated 27th November 2023 seeking to cite Japhet Mndambo Bashari the 56th Defendant for contempt of the orders of this court given on 9th November 2020. 2. The application is premised on the grounds on its face and on the supporting afidavit sworn on 27th November 2023 by Basil Criticos. It was averred that the 56th defendant has deliberately and wilfully disobeyed clear orders that were granted by this court on 9th November 2020. The orders were clear that no new person would be allowed to enter the land and or carry out any development thereon pending hearing and determination of the suit. 3. It was also averred that the 56th Defendant is one new such person who was not on the suit property as at 9th November 2020 when the orders were granted barring any new person not on the suit property from entering the same. The 56th Defendant being aware of the said orders chose to deliberately and wilfully disobey them through the following actions; illegally fencing a portion of the suit property, https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14 3

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illegally ploughing the illegally fenced portion of the suit property, illegally planning crops on the illegally fenced and ploughed portion of the suit property, illegally placing a large blue container on the illegally fenced portion of the suit property whose contents are unknown illegally placing construction materials on the illegally fenced portion of the suit property. 4. It was further averred that the Plaintifis through their Advocate on record wrote to the 56th Defendant asking him to immediately cease any interference with the suit property and further demanded that he complies with the orders of the court of 9th November 2020 to keep away from the suit property and thus the 56th Defendant had actual and personal knowledge of the court orders of 9th November 2020. 5. The Plaintifis also filed written submissions in support of the application upon which Learned Counsel Mr. Obok in highlighting the same urged the court to cite the 56th Defendant for contempt of the orders issued herein. 6. The 56th Defendant filed a Replying Afidavit sworn by Japhet Mndambo Bashari on 16th January 2024. It was deponed that he was not a party to this suit as at 9th November 2020 when the said orders were issued. It was stated that he was joined to these proceedings on 16th September 2022 and that the Plaintifis had also filed another suit Mombasa ELC No. 143 of 2022 Kenya Trade & Development Co. Ltd v Japhet Mndambo Bashari which was dismissed and as such there are no injunctive orders against him upon which he can be cited for contempt. He also stated that he has been in occupation of Plot No. Taita/Taveta/Lake Jipe Settlement Scheme/779 since 1999 way before 2022 and before issuance of titles on 6th February 2015. Counsel for the Defendant also made oral submissions in support of the application. 7. Having considered the application and submissions made by Counsel for the parties, the main issue for consideration is whether Japhet Mndambo Bashari, the 56th Defendant is in contempt of the orders issued by this court on 9th November 2020. 8. The law relating to contempt of this court is found in section 5 of the judicature Act, section 29 of the Land Act and The Practice Directions on Proceedings in the Environment and Land Court. Section 5 of the Judicature Act provides as follows; “ The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.” Section 29 of the Environment and Land Court Act provides as follows; “ Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an ofience, 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”. Practice direction 43 on Proceedings Relating to the Environment and the Use and Occupation of, and title to Land and Proceedings in Other Courts (Gazette Notice No. 5178) provides that noncompliance with the relevant provisions of the CPR, orders, and/or directions issued by a judge shall attract sanctions including but not limited to the imposition of costs, fines, striking out of pleadings, the dismissal of a suit and/or meting out punishment prescribed in the ELC Act or any other Statute as the court may deem fit bearing in mind the overriding interest of justice. 9. This application is seeking prayers that the 56th Defendant be found to be in contempt. What constitutes contempt of court? https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14 4

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10. In the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the Learned Judges of Appeal went to great lengths in tracing the foundations of law on contempt as practiced in Kenya. They state; “ Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others, (supra) when dealing with the same issue concerning the applicability of English Law of contempt in our Courts had this to say: “Following the implementation of the famous Lord Woolf's Access to Justice Report, 1996', the Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rules, 1999. Recently on 1 st October, 2012 the Civil Procedure (Amendment No. 2) Rules, 2012 came into force and part 81 thereof efiectively replaced Order 52 of the Rules of the Supreme Court of England in its entirety.” Consequently, a careful consideration must be had to the provisions of the Contempt of Court Act of 1981 Act and PART 81 of Civil Procedure (Amendment No. 2) Rules, 2012 with regard to contempt proceedings in Kenya. 11. 12. Part 81 provides for four difierent natures or forms of violations under contempt of court. They are; i. Committal for “breach of a judgment, order or undertaking to do or abstain from doing an act” provided for under Rule 81.4. ii. Committal for “interference with the due administration of justice” (applicable only in criminal proceedings) provided for under Rule 81.11. iii. Committal for contempt “in the face of the court”, provided for under Rule 81.16. iv. Committal for “making false statement of truth or disclosure statement.” provided for under Rule 81.17. For what it is worth, I have demonstrated that the willful disobedience of any judgment, decree, direction, order, or other constitutes contempt of court. 14. In efiect, an applicant seeking to cite another for contempt is held to very high standards of proof, higher than in civil cases. He must prove the following: 13. a. That there is in existence of an order/ judgement that is clear unambiguous and binding. b. That the Defendant/Respondent has knowledge of the said order/ Judgement c. That the Defendant/Respondent has acted in breach of the said orders d. That the Defendant/Respondent’s conduct is deliberate. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo J (As he then was) stated that; “ …The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide.” 14. An allegation of contempt of court is a serious matter since it puts the liberty and or property of the contemnor at grave risk. It is for that reason that the standard of proof in contempt proceedings is higher than the usual one in civil proceedings of proof on a balance of probabilities. See Mutitika https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14 5

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v . Baharini Farm Limited [1985] KLR 229 and Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR. 15. Looking at the circumstances in the present application, this court issued its orders on 9th November 2020. The said orders was issued against the Defendants who were on record and it was as follows: “ An order of status quo be and is hereby issued to the efiect that no new persons shall be allowed to enter the land and carry out any development herein pending the hearing and determination of the suit” 16. The 56th Defendant was not a party to the suit though he was already in occupation of the same, these facts have not been disputed and or controverted by the Plaintifis. Hence therefore the said orders as at the time of issuance could only have applied to the parties on record. Further the Court is unable to confirm whether the 56th Defendant’s actions were deliberate and in breach of the said orders. 17. In the absence of evidence showing the existence and satisfaction of the ingredients necessary to prove contempt, the application fails. Conclusion 18. In view of the foregoing and considering the evidence adduced herein, this court is not satisfied that he Plaintifis have met the threshold for grant of the orders sought and in the circumstances the Plaintifis application dated 27th November 2023 is hereby determined as follows; a. The application is dismissed. b. Each party to bear own costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 14TH DAY OF JUNE 2024. E. K. WABWOTO JUDGE In the presence of:Mr. Obok for the Plaintifis/Applicants. Ms. Juma h/b for Mr. Mutubia for 7th and 12th Defendant. Ms. Mwaniki h/b for Busaidy for 13th Defendants. N/A for the 56th Defendant. N/A for the other parties. Court Assistant; Patrick Maina. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14 6

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