Nyamai (Suing as the Administrator of the Estate of Onesmus Nyamai Kyengo) v Mwaganda & 6 others (Environment and Land Case 183 of 2013) [2025] KEELC 18718 (KLR) (18 June 2025) (Ruling) Neutral citation: [2025] KEELC 18718 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND CASE 183 OF 2013 FM NJOROGE, J JUNE 18, 2025 BETWEEN DANIEL KATUMO NYAMAI (SUING AS THE ADMINISTRATOR OF THE ESTATE OF ONESMUS NYAMAI KYENGO) ......................................... PLAINTIFF AND GILBERT KANUNGU MWAGANDA ........................................... 1ST DEFENDANT JOANNES CHARO KATANA ........................................................ 2ND DEFENDANT JUMWA KARISA MRYANI ............................................................ 3RD DEFENDANT ZAWADI KIBETU KIERIA ............................................................. 4TH DEFENDANT PAUL KATANA MWANZA ............................................................ 5TH DEFENDANT JOSEPHAT NGALA MUNYAKI .................................................... 6TH DEFENDANT JONATHAN KENGA KATANA ALIAS GONA ........................... 7TH DEFENDANT RULING 1. On 24/10/2024, the Defendants were found to be guilty of contempt by disobedience of a court order dated 18/9/2020 and were directed to appear before this court in person for purposes of sentencing. However, before the sentencing could proceed, the Defendants led a Notice of Motion application dated 10/3/2025 seeking the following orders: 1. Spent; 2. Spent; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18718/eng@2025-06-18 1
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2. 3. That this honourable court be pleased to stay mitigation and sentencing process to allow the rm of M/S IRB Mbuya & Company Advocates acquaint themselves with the matter herein. 4. That there is need for a plot status report be led in court to determine the real status quo of the plot before the court proceeds to sentence the Defendants/applicants; 5. That the costs of this application be in the cause. The Application is supported by an adavit sworn by Osborne Lijoodi and based on the following grounds: a. That the Defendant/applicants herein duly instructed the rm of IRB Mbuya & Company Advocates to come on record in the suit and represent their interests forthwith; b. That the Defendant/applicant herein is desirous to come on record and as per the judgment dated 4/2/2025, we would like to participate in the mitigation process as this matter has a judgment; c. That failure to le this application on time was not at all deliberate but an oversight on our part as we have had instructions for one week; d. That we have had sessions with the Defendants/applicants and what is pending is for us to have a look at all pleadings to enable us represent the Defendants/applicants further in this suit; e. That no injustice or prejudice will be occasioned to any of the parties if the orders sought are granted; f. That the Defendants/respondents have requested us to move the court before mitigation is carried out and sentencing; g. That it is in the interest of justice, fairness and equity for this court to grant the orders sought. 3. The application is opposed by the Plainti through a replying adavit dated 18/3/2025. According to the Plainti, the application is incompetent as the supporting adavit oends Rule 9 of the Advocates Practice Rules, and that the application is an afterthought and an abuse of the court process. To him, the application is an attempt by the Defendants to relitigate the motion dated 27/7/2023 through the back door and that the issues raised should have been raised as a response to the Notice of Motion dated 30/5/2023. The Plainti added that the Defendants have not shown that they have purged the contempt by vacating the suit premises as was ordered by the Court on 24/10/2024. The Plainti added that the application is an afterthought and it is not clear how the ground status report will assist the court at this point. 4. The application was canvassed by way of written submissions. While the Plainti led written submissions, the Defendants relied on oral arguments presented in court. I have considered the pleadings, the adavits on record, and the submissions presented. 5. It is not in dispute that the Defendants were found in contempt of court orders and that the matter is currently at the sentencing stage. It is also not in dispute that this is not the rst application seeking to stay mitigation and sentencing. A similar request was previously adjudicated upon by this Court and a ruling delivered on 4/2/2025. This application is therefore res judicata, the same having been determined earlier. Courts are not inclined to entertain repeated applications aimed at staying execution or mitigation after a nding of contempt has already been rendered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18718/eng@2025-06-18 2
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6. Further, the request for a ground status report at this stage is misguided. The Court rendered judgment, and the process of execution is underway. The status of the land does not aect the fact that the Defendants disobeyed court orders. The question before the Court is sentencing, not ownership, use, or occupation status of the land. In essence, the application distracts from the real issue before the Court and seeks to reintroduce issues already conclusively determined. 7. The argument that the newly instructed rm requires more time to familiarize itself with the matter cannot be used as a basis to stall judicial proceedings. The Defendants have had ample opportunity to instruct counsel and prepare for mitigation. The administration of justice must not be held at ransom by last-minute litigation tactics. 8. I am therefore persuaded that the application dated 10/3/2025 lacks merit and is an abuse of the court process, and it is accordingly dismissed with costs to the Plainti. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 18TH DAY OF JUNE 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18718/eng@2025-06-18 3
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