Mkali & 253 others v Suleiman & 30 others; Kurgat (DCIO Mtwapa) (Alleged Contemnor) (Enviromental and Land Originating Summons 231 of 2017) [2024] KEELC 14163 (KLR) (10 December 2024) (Ruling) Neutral citation: [2024] KEELC 14163 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIROMENTAL AND LAND ORIGINATING SUMMONS 231 OF 2017 FM NJOROGE, J DECEMBER 10, 2024 BETWEEN NICHOLAS MKOMA MKALI & 253 OTHERS & 253 OTHERS & 253 OTHERS & 253 OTHERS .......................................................................................... PLAINTIFF AND YAHYA MOHAMED SULEIMAN & 30 OTHERS & 30 OTHERS & 30 OTHERS & 30 OTHERS ......................................................................................... DEFENDANT AND LEONARD KURGAT (DCIO MTWAPA) ...................... ALLEGED CONTEMNOR RULING 1. Two applications dated 6/12/2023 has been placed before this court for determination. The motion seeks punishment for contempt of Mr Kassim Abdalla Mohamed, the 29th defendant and Mr Leonard Kurgat the intended interested party. Leonard Kurgat was sought to be joined as a party vide an application dated 22/11/2023. Which was dismissed on 15/5/24. It is clear that the motion seeking punitive orders against him was led before the application seeking his joinder was dismissed. For that reason, I nd that the seeking of orders of committal or ne against him is irregular, he not being a party to this suit. 2. However, in the event that is an incorrect position; I will seek out the grounds in the application dated 6/12/2023 against him. 3. It is stated in the supporting adavit that the order issued on 7/11/2023 were served upon him; he is said to have proceeded to Mwatundo Farm where the suit property is situated and arrested seven members of the Mwatundo Farmers CBS. Very little other information is in the supporting adavit as to why the members were arrested. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14163/eng@2024-12-10 1
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4. There is an application led in opposition to the application by the oce of the Attorney General representing the intended 2nd contemnor. It is stated in that adavit that arrests on the suit property were not in contravention of the order of this court dated 7/11/2023; that the arrest of Nicholas Mkoma Mkali was on the basis of suspected involvement in robbery with violence. Only one other person, Arnest Mbura, was arrested on the basis of alleged assault. The arrests were made by another police ocer and not the alleged 2nd contemnor herein and it was pursuant to complaints by two persons. 5. I have scrutinized the order attached to the supporting adavit. It has no orders against Leonard Kurgat. In fact, the order struck him out of the proceedings even before a formal application was led seeking his joinder. I have no reason to connect the arrest of the members of the Mwatundo FCBS with the orders of this court dated 7th November 2024. It has not been proved that he has been charged with any oence in relation to the suit land. Nevertheless, it is curious that no charge sheets have been exhibited in the application that show that the charges the arrested persons face are in connection with the suit land; on the other hand, the DCIO has attached a charge sheet showing that at least one of them has been charged with robbery with violence. 6. From the foregoing I am unable to nd that the DCIO has been in contempt of this court’s orders as alleged. 7. The next person is Kassim Abdalla Mohamed, the 29th defendant. He is said to have accompanied the DCIO on the arrest mission. NO other details save those alleged against the DCIO have been levelled against Kassim Abdalla Mohamed, and the fate of the orders sought against him is therefore the same as that of those sought against the DCIO. That application dated 6/12/23 lacks merit and the same is for dismissal and I hereby dismiss it with costs. RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 10TH DAY OF DECEMBER, 2024. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14163/eng@2024-12-10 2
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