Jules Investment Limited & 2 Others v Pherus Arori Monda & 2 Others

HARON SAITABAU KISHIL………………………….…1ST INTERESTED PARTY LEAH JELAGAT…………………………………………2ND INTERESTED PARTY EZEKIEL ONDABU KIAJE & ANNA NZILANI ONDABU….3 rd INTERESTED PARTY MARY KANGOYO KIPLANGAT…………………….……..4TH INTERESTED PARTY LAWRENCE KOBIA LAIKERA………………………...…….5TH INTERESTED PARTY MATATHIA TRADING CO. LIMITED……………..………6TH INTERESTED PARTY SAMMY MACHARIA………………..………….7TH INTERESTED KIMETHU…………………………………………8TH INTERESTED KARANJA PARTY DANIEL PARTY RULING (In respect of the notice of motion dated 14th March 2024 brought under the provisions of Sections 8 and 9 of the Law Reform Act and under 53 rule 3 of the Civil Procedure Rules) Background. 1. This ruling is in respect of the motion dated 14 th March 2024, brought under the provisions of Sections 8 and 9 of the Law Reform Act and __________________________________________________________________ RULING ELC NO. 674/2017 2

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Order 53 rule 3 of the Civil Procedure Rules. It is expressed to have been brought pursuant to the leave granted on 27 th February 2024. 2. I have taken time to peruse the record of the court. On 27 th February 2024, the court allowed an ex parte chamber summons application dated 24th October 2023 in terms of prayer 2 only. The said chamber summons was expressed to have been brought under the provisions of Section 5(1) of the Judicature Act, Cap 8 of the Laws of Kenya, Sections 3, 3A, 63(c) and (e) and 89 of the Civil Procedure Act and Order 53 rule 2(2) of the Civil Procedure Rules and the Supreme Court of England, 1965. The chamber summons sought a total of 7 prayers but the court only allowed prayer number 2; to the effect that leave be granted to the Applicants to apply for an order of committal to prison against Pherus Arori Monda, Agnes Nasianoi, Riano and Land Registrar Kajiado for a period of 6 months and or attachment and sequestration of their property for disobedience of the court order granted on 30th July 2020 in this suit. 3. In their motion dated 14th March 2024, purportedly, pursuant to the leave granted on 27th February 2024, the applicants seek 5 prayers which are listed hereunder verbatim; __________________________________________________________________ RULING ELC NO. 674/2017 3

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1) That the Honourable Court be pleased to cancel all unlawful registrations effected after 30 th July 2020 and the Land Registrar be ordered to restore the register as prevailing as at 30 th July 2020. 2) That pending the hearing and determination of this application and or substantive application or any other application, the 3 respondent (Kajiado Land Registrar) be ordered to avail in court by way of an affidavit, current copies of green cards, in respect of Kajiado/Kaputiei-North/22232, 22233 and all the resultant subdivisions including Kajiado/Kaputiei-North/26724, 26725, 31809 – 31814, 29437 – 29480 for court’s perusal and issuance of appropriate directions. 3) That the 1st, 2nd and 3rd respondents be committed to Civil Jail for a period not exceeding six months for disobedience of the court order issued on 30th July 2020 and which was by consent. 4) That the respondent particularly the 1st and 2nd respondents/agents/others be restrained from evicting the applicant and the interested parties from KAJIADO/KAPUTIEI- NORTH/22232, 22233 and all resultant subdivisions including __________________________________________________________________ RULING ELC NO. 674/2017 4

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Kajiado/Kaputiei-North/26724, 26725, 31809 - 31814, & 29437 29480. 5) That costs of this application be provided for. 4. The application is opposed by the plaintiffs/respondents vide their affidavit of 24th May 2024. 5. Even before going into the merits of the application, logic dictates that, if indeed the application herein is brought pursuant to the leave granted on 27th February 2024, only one prayer is valid for consideration by the court; the prayer that the 1 st, 2nd and 3rd respondents be committed to Civil Jail for a period not exceeding 6 months for disobedience of the court order issued on 30 th July 2020. The court was emphatic that ‘only prayer number 2 in summons dated 24th October 2023’ was allowed. 6. In any event, the court cannot proceed to cancel titles in the names of 3rd parties without affording them an opportunity to be heard. It is also not lost on the court that the application before it is a postjudgment application. The court is limited by the doctrine of functus officio in terms of the scope of its authority after rendering a judgement in a case. The court on its own motion strikes out prayer No. 1, 2 and 4 in the motion dated 14 th March 2024. That leaves me __________________________________________________________________ RULING ELC NO. 674/2017 5

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only with the prayer for committal to civil jail of the 1 st, 2nd and 3rd respondents for the alleged disobedience of the court order of 30 th July 2020. Issues for determination. 7. The sole issue for determination is whether the application before me is merited. Determination. 8. I must begin by stating that I am perturbed by the provisions of the law under which the application is purportedly hinged on. It is stated to have been brought under the provisions of Sections 8 and 9 of the Law Reform Act and Order 53 rule 3 of the Civil Procedure Rules. The cited Sections and rules make provision for judicial review orders. The power of this court to punish for contempt is provided for under Section 5 of the Judicature Act as correctly submitted by the advocates for the plaintiffs. On the basis of citing the wrong provisions of the law, the application is fatally incompetent. 9. It is not in doubt that a court of law possesses the authority to enforce compliance with its lawful orders. The Supreme Court of __________________________________________________________________ RULING ELC NO. 674/2017 6

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Kenya in the case of Githiga & 5 others –vs- Kiru Tea Factory Company Limited (Petition no. 13 of 2019) (2023) KESC 4 (KLR), emphasized that, “Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. We note that the Contempt of Court Act having been declared unconstitutional in Kenya Human Rights Commission –vsAttorney General & another (2018) eKLR on November 9, 2018, the instructive provision remains Section 5(1) of the Judicature Act which grants the High Court and the Court of Appeal the power to punish for contempt.” 10. The Supreme Court of Kenya went further to recite its pronouncement in Republic -vs- Ahmed Abolfathi Mohammed and another, Supreme Court Criminal Application No. 2 of 2018 (2018) eKLR, to the effect that, “We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of court is well established. In the case of __________________________________________________________________ RULING ELC NO. 674/2017 7

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Mutitika -vs- Baharini Farm Limited (1985) KLR 229, 234 the Court of Appeal held that; ‘In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt…’” 11. I do not think the applicants sat down to consider the nature of the application they intended to present before the court. Contempt proceedings are quasi-criminal in nature. 12. Looking at the evidence presented in support of the application in the form of the supporting affidavit deposed by Jonah Otieno Owade, the applicants entirely rely on hearsay evidence and have not provided any tangible evidence to support their allegations of disobedience of the court order of 30th July 2020. 13. At paragraph 10 of his affidavit, the deponent deposes; “That the applicants have further been informed by other parties privy to the suit herein, even though not parties, that the suit land has since changed hands contrary to the court’s order of 24th April 2020”. __________________________________________________________________ RULING ELC NO. 674/2017 8

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14. Earlier on at paragraph 7 of the same affidavit, the deponent stated: “That sometimes in the month of August/September, 2013, the applicants and the interested parties who hold titles prior to the judgment by Justice Christine Oraro were notified by agents of the 1 st and 2nd respondents that the suit land herein had been transferred to unknown third parties who were in the process of evicting the applicants and the interested parties herein”. 15. That is not evidence that may be relied on by the court to make a finding of contempt of court. 16. The court therefore finds and holds that the application dated 14th March, 2024 is not only incompetent but also unmerited. It is hereby dismissed with costs to the respondents. Dated Signed and Delivered Virtually this 24th Day of September, 2026. M.D. MWANGI JUDGE In the virtual presence of: __________________________________________________________________ RULING ELC NO. 674/2017 9

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Mr. Muli for the Applicants Mr. Githuka alongside Mr. Itaya for the Respondents Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ RULING ELC NO. 674/2017 10

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