Case ID:159218

Machetha Kariuki & 6 others v Samuel Githegi Mbugua & 10 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Suit 557 of 2009

Parties:

Machetha Kariuki, Wambui Njoroge, Wambui Njau, Maria Karoki, Nyambura Kabia, Njeri Munyao & Njeri Mbindyo v Samuel Githegi Mbugua, Grace Muthoni Githegi, Samuel Mbugua Kibathi, Margaret Nyokabi Mbugua, Ruth Njeri Kabogo, Moses Mbugua Mwangi, Christine Mithiri Mbugua, Zachariah Kimemia Gakunju, Mary Warurii Gakunju, Commissioner of Lands & Registrar of Titles Nairobi

Date Delivered:

04 Jun 2020

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Samson Odhiambo Okong'o

Citation:

Machetha Kariuki & 6 others v Samuel Githegi Mbugua & 10 others [2020] eKLR

Court Division:

Environment and Land

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

ELC SUIT NO. 557

OF 2009

MACHETHA KARIUKI............................................................1

ST

PLAINTIFF

WAMBUI NJOROGE................................................................2

ND

PLAINTIFF

WAMBUI NJAU.........................................................................3

RD

PLAINTIFF

MARIA KAROKI.......................................................................4

TH

PLAINTIFF

NYAMBURA KABIA.................................................................5

TH

PLAINTIFF

NJERI MUNYAO.......................................................................6

TH

PLAINTIFF

NJERI MBINDYO......................................................................7

TH

PLAINTIFF

(Suing on their behalf and as representatives of Kasarani Farmers Co-operative Society)

VERSUS

SAMUEL GITHEGI MBUGUA..............................................1

ST

DEFENDANT

GRACE MUTHONI GITHEGI..............................................2

ND

DEFENDANT

SAMUEL MBUGUA KIBATHI..............................................3

RD

DEFENDANT

MARGARET NYOKABI MBUGUA......................................4

TH

DEFENDANT

RUTH NJERI KABOGO.........................................................5

TH

DEFENDANT

MOSES MBUGUA MWANGI.................................................6

TH

DEFENDANT

CHRISTINE MITHIRI MBUGUA.........................................7

TH

DEFENDANT

ZACHARIAH KIMEMIA GAKUNJU...................................8

TH

DEFENDANT

MARY WARURII GAKUNJU.................................................9

TH

DEFENDANT

COMMISSIONER OF LANDS.............................................10

TH

DEFENDANT

REGISTRAR OF TITLES, NAIROBI..................................11

TH

DEFENDANT

RULING

What I have before me is a Notice of Motion application dated 5

th

June, 2018 brought by the 1

st

plaintiff seeking the following orders;

1. That this honourable court cites the 2

nd

defendant, Grace Muthoni Githegi and the 4

th

defendant, Margaret Nyokabi Mbugua for contempt of court orders given on 5

th

March 2015 and issued on 24

th

March, 2015.

2. That this honourable court does order the arrest and committal of the 2

nd

defendant, Grace Muthoni Githegi and the 4

th

defendant, Margaret Nyokabi Mbugua to jail for a term of six (6) months or such time or terms as the honourable court may deem fit for contempt of the said court order.

3. That this honorable court does issue an order to purge the said acts of contempt of court and invalidate/ cancel all the acts done on the suit properties namely, L.R 7153/1, L.R No. 7153/R, L.R 7153/2, L.R 12825 and the subdivisions thereof by the 2

nd

and 4

th

defendants in contempt of the said court order and to declare the said acts illegal, null and void

ab initio

.

4. That this honorable court does issue an order to purge the said acts of contempt of court and invalidate/ cancel all the acts done on the suit properties namely, L.R 7153/1, L.R No. 7153/R, L.R 7153/2, L.R 12825 and the subdivisions thereof by the 1

st

to 11

th

defendants/respondents during the pendency of this suit from 2

nd

November, 2009 and be pleased to declare the said acts illegal, null and void

ab initio

under the doctrine of

lis pendens

.

5. That this honourable court does issue an order to purge the contempt of court by the defendants/respondents and, land and survey documents be provided to the court for the purge of the contempt.

6. That the respondents to bear the costs of the application.

The application that was supported by the affidavit sworn by the 1

st

plaintiff on 5

th

June, 2018 was brought on the grounds that, on 5

th

March, 2015, the court made an order directing that the status quo relating to L.R 7153/1, L.R No. 7153/R, L.R 7153/2, L.R 12825 and the subdivisions thereof (hereinafter referred to only as “the suit properties”) be maintained. The 1

st

plaintiff (hereinafter referred to only as “the applicant” where the context so permits) averred that the 2

nd

and 4

th

defendants had disobeyed the said orders and had refused and/or neglected to comply with the same. The applicant averred that the 2

nd

and 4

th

defendants had in blatant disobedience of the said order proceeded to sell and transfer the suit properties. The applicant averred that the 2

nd

and 4

th

defendants had also disobeyed the said order by constructing structures on the suit properties. The applicant averred that the 2

nd

and 4

th

defendants were aware of the said order which was obtained by their advocates. The applicant averred that the said acts of disobedience of the said court order was continuing. In his affidavit in support of the application, the applicant annexed; a copy of the court order said to have been disobeyed by the 2

nd

and 4

th

defendants, copies of agreements for sale and leases said to have been entered into by the 2

nd

and 4

th

defendants in violation of the said court order and copies of photographs said to have been taken on the suit properties showing the structures that had been put up thereon by the 2

nd

and 4

th

defendants.

The 1

st

plaintiff’s application was opposed by the 4

th

defendant through grounds of opposition dated 13

th

June, 2018 and a replying affidavit of the same date. The 4

th

defendant averred that the order the subject of the 1

st

plaintiff’s application was made in her favour and as such there was no way she could disobey it. The 4

th

defendant averred that the 1

st

plaintiff did not seek any order restraining the 4

th

defendant from dealing with the suit properties and as such the alleged disobedience of the said court order had no basis. The 4

th

defendant contended that the 1

st

plaintiff’s application was bad in law as the same was brought contrary to the provisions on section 34 of the Contempt of Court Act, 2016. The 4

th

defendant averred further that the substantive reliefs sought in the application by the 1

st

plaintiff could not be granted before the hearing of the suit. The 4

th

defendant averred that the order of status quo was directed against the plaintiffs and as such the 4

th

defendant could not disobey the same.

The 4

th

defendant averred that she was the registered proprietor of L.R No. 12825/8, 9,10 and 17 and part of the subdivisions of the land originally known as L.R No. 7173/1 and L.R No. 7173/2. The 4

th

defendant averred that she had occupied the said properties peacefully for over 40 years and had developed some of the properties and sold others to third parties. The 4

th

defendant averred that the 1

st

plaintiff’s application was intended to derail the hearing of the main suit and urged the court to dismiss the same.

The application was heard on 3

rd

December, 2019. In his submission in support of the application, Mr. Gatitu advocate for the 1

st

plaintiff/applicant reiterated the grounds on the face of the application and the supporting affidavit of the applicant. Mr. Gatitu submitted that the applicant had demonstrated that the 2

nd

and 4

th

defendants (respondents) had disobeyed the order that was made by the court on 5

th

March, 2015 for the maintenance of status quo in relation to the suit properties. Mr. Gatitu urged the court to grant the orders sought in the application. He submitted that the 2

nd

and 4

th

defendants should be arrested and committed to jail and an order should be made reinstating the suit properties to the state in which they were prior to the 2

nd

and 4

th

defendants’ acts of contempt complained of. Mr. Gatitu submitted that the affidavit filed by the 4

th

defendant in response to the application supported the applicant’s case.

In her submission in opposition to the application, Ms. Mwachiro advocate for the 4

th

defendant relied on the 4

th

defendant’s grounds of opposition and replying affidavit. Ms. Mwachiro submitted that for the 2

nd

and 4

th

defendants (hereinafter referred to only as “the respondents” where the context so permits) to be found guilty of contempt, it had to be demonstrated that there was a clear order made by the court that was disobeyed by the 2

nd

and 4

th

defendants. Ms. Mwachiro submitted that it had to be established also that the disobedience of the order was deliberate. Ms. Mwachiro submitted that the order made by the court on 5

th

March, 2015 restrained the plaintiffs from interfering with the peaceful and quiet occupation of the suit properties. She submitted that there was no order restraining the respondents from dealing with the suit properties. Ms. Mwachiro submitted further that some of the transactions alleged to have been undertaken in breach of the said court order took place prior to the date of the order. Ms. Mwachiro submitted further that some of the orders sought by the applicant were final in nature and as such could not be granted at an interlocutory stage. She submitted that the court could not cancel titles held by third parties who were not parties to the suit and were not before the court. Ms. Mwachiro submitted that the respondents did not disobey the court order made on 5

th

March, 2015 and urged the court to dismiss the 1

st

plaintiff’s application.

Ms. Gatuhi who appeared for the 2

nd

defendant informed the court that the 2

nd

defendant was deceased and as such the application could not lie as against her. Ms. Kinuva and Ms. Odongo who appeared for the 1

st

defendant and the interested party respectively left the matter to the court. In his submission in reply, Mr. Gatitu argued that a party to a suit cannot have a free hand to deal with a property the subject of a suit. Mr. Gatitu submitted that the respondents admitted to selling the suit properties to third parties and as such the court must order them to purge their contempt. He submitted that if the said acts of contempt were not purged, it would not be possible to prosecute the suit. He urged the court to consider the effect of the doctrine of

lis pendens

on the transactions undertaken by the respondents.

I have considered the 1

st

plaintiff’s application together with the supporting affidavit. I have also considered the replying affidavit and grounds of opposition filed by the 4

th

defendant in opposition to the application. Finally, I have considered the submissions of counsels and the authorities referred to in support thereof. In

Hardkinson

v

Hardkinson [1952] ALL ER 567,

it was held that:

“

It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such order would as a general rule result in the person disobeying being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt”

.

The conditions that an applicant must satisfy before an order of committal for contempt of court is made were laid down in

Republic

v

Nairobi City County Ex-Parte, David Peter Ndambuki [2015] eKLR

where the court stated as follows:

“It is trite law that where committal is sought for breach of an order, it must be made clear what the defendant is alleged to have done. The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient

particularity

to enable him to meet the charge. The necessary information must be given in the notice itself. The slightest ambiguity to the order can invalidate an application for committal as ambiguity can in turn lead to the standard of proof, which is higher than the standard in civil cases but lower than criminal standard, not being attained especially on affidavit evidence. Therefore, the law is that no order requiring a person to do or abstain from doing any act may be enforced by contempt unless a copy of the order has been served personally and endorsed with a notice informing him that if he disobeys the order he is liable to the process of execution.”

I am aware that courts have since moved from the position that the order alleged to have been breached must be personally served on the person sought to be punished together with a penal notice before contempt can be proved. Knowledge of a court order has been held to be sufficient thereby dispensing with personal service for the purposes of contempt proceedings.See,

Shimmers Plaza Limited

v

National Bank of Kenya Limited [2015] eKLR.

In

Mutitika

v

Baharini Farm Ltd [1985] KLR 227

it was held that:

(i) A person who knowing of an injunction, or an order of stay, willfully does something, or causes others to do something, to break the injunction, or interfere with the stay, is liable to be committed for contempt of court as such a person has by his conduct obstructed justice.

(ii) The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt.

(iii) The principle must be borne in mind that the jurisdiction to commit for contempt should be carefully exercised with great reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor.

The 2

nd

and 4

th

defendants have been accused of disobeying the orders that were made herein on 5

th

March, 2015. I have looked at the extracted order which is attached to the 1

st

plaintiff’s affidavit in support of the application and the actual order that was made by the court on 5

th

March, 2015. According to the proceedings of 5

th

March, 2015, the court made the following orders;

“1. The Plaintiffs to file and serve their Replying Affidavit to the Defendants’ Notice of Motion dated 20

th

February, 2015 within 14 days of today. The Defendants to also file their Replying Affidavit to the Plaintiffs’ Notice of Motion dated 15

th

September, 2014 within 14 days of today. Parties granted leave to file Further Affidavits if need be. Mention on 5

th

May, 2015 for direction on the status quo to be maintained pending the hearing and determination of the Notice of Motion dated 9

th

July, 2012 and also to reserve a ruling date for the Notice of Motion dated 9

th

July, 2012.

2. In the meantime the status quo to be maintained with respect to the properties that are the subject of the Defendants’ Notice of Motion dated 20

th

February, 2015 shall be that the Plaintiffs, their agents or servants shall not in any manner interfere with the Defendants’ peaceful occupation and possession of the said property.”

It is not clear from the record as to which firm of advocates extracted the order that was made by the court on 5

th

March, 2015. There is no doubt however from the order of the court I have reproduced above that the order that was extracted was not in accord with the order that was given by the court. Contrary to the terms of the extracted order, the court only gave one order of status quo in favour of the defendants on the following terms:

“2

. In the meantime the status quo to be maintained with respect to the properties that are the subject of the Defendants’ Notice of Motion dated 20

th

February, 2015 shall be that the Plaintiffs, their agents or servants shall not in any manner interfere with the Defendants’ peaceful occupation and possession of the said property.”

I am in agreement with the 4

th

defendant that the order of status quo that was made on 5

th

March, 2015 was in favour of the defendants. The order restrained the plaintiffs from interfering with the defendants’ peaceful occupation and possession of the properties which were the subject of the defendants’ Notice of Motion application dated 20

th

February, 2015. It follows therefore that the court did not make any order restraining the 2

nd

and 4

th

defendants from selling, transferring or leasing the suit properties. In the absence of such order, the 1

st

plaintiff’s allegation that the 2

nd

and 4

th

defendants breached the said court order made on 5

th

March, 2015 has no basis.

The 1

st

plaintiff had also sought the prayers in his application on the basis of the doctrine of

lis pendens

. In Mawji

v

US International University & Another

[1976-80] 1 KLR 229

Madan J. cited

Bellamy v Sabine (1857) 1 De G & J 566, 584,

where Turner L J stated as follows on the doctrine of

lis pendens

:

“It is … a doctrine common to the Courts both of law and equity, and rests, as I apprehend, upon this foundation – that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations

pendente lite

were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings

de novo

, subject again to be defeated by the same course of proceeding.”

In the same case, Madan L J also cited

Gour, on the Indian Transfer of Property Act, 7

th

Edition, Volume 1 at page 579

where the author stated that:

“Every man is presumed to be attentive to what passes in the Courts of justice of the State or Sovereignty where he resides. Therefore, purchase made of property actually in litigation,

pendente lite

, for a valuable consideration, and without any express or implied notice in point of fact affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the judgment or decree in the suit.”

In Bernadatte

Wangare Muriu

v

National Social Security Fund Board of Trustees & 2 others [2012] eKLR

, the court cited

Fredrick Joses Kinyua and Peter Kiplangat Koech

v

G.N. Baird, Nairobi Hccc No. 4819 of 1989

as consolidated with

Nairobi Hccc No. 6587 of 1991 George Neil Baird and Wanda Baird

v

Fredrick Joses kinyua and Peter Kiplangat Koech

in which G.S. Pall J. stated as follows:

“

The doctrine of lis Pendens under section 52 of TPA is a substantive law of general application. Apart from being in the statute, it is a doctrine equally recognized by common law. It is based on expedience of the court. The doctrine of lis pendens is necessary for final adjudication of the matters before the court and in the general interests of public policy and good effective administration of justice. It therefore overrides, section 23 of the RTA and prohibits a party from giving to others pending the litigation rights to the property in dispute so as to prejudice the other…”

In

Patrick Gathitu Kariuki

v

Hottensiah Wambui Hinga & another [2020] eKLR

, this court stated as follows on the effect of the doctrine of

lis pendens

:

“It is not correct as claimed by the plaintiff that the sale transaction between the 1

st

defendant and 2

nd

defendant was carried out in breach of a court order issued herein. From the record, the order restraining the 1

st

defendant from among others selling the suit property was made on 15

th

March, 2016 while the agreement for sale between the 1

st

defendant and the 2

nd

defendant was made on 18

th

March, 2015. I am however in agreement with the plaintiff that the transaction was carried out in breach of the

lis pendens

rule. Breach of the

lis pendens

rule

per se

in my view does not nullify a sale transaction. What is does is to make the transaction subject to the outcome of the court proceedings which were pending when the transaction involving the land in question was carried out. It follows therefore that, whereas the sale transaction between the 1

st

and 2

nd

defendants was valid and enforceable as between them, the same is subject to the outcome of this suit.”

I still hold the same view. If the 2

nd

and 4

th

defendants sold or leased the suit properties while this suit was pending, the said transactions breached the doctrine of

lis pendens

. However, whether or not the said transactions should be cancelled or nullified can only be determined at the trial of the suit and not at this stage. Due to the foregoing, the 1

st

plaintiff’s application cannot also succeed on the basis of the doctrine of

lis pendens.

The upshot of the foregoing is that the plaintiffs’ Notice of Motion application dated 5

th

June, 2018 is not for granting. The application is dismissed with costs to the 4

th

defendant.

Delivered and Dated at Nairobi this 4

th

Day of June 2020

S. OKONG’O

JUDGE

Ruling delivered through Microsoft Teams Video Conferencing Platform in the presence of:

Mr. Mugo h/b for Mrs. Wambugu for the Interested Party

Ms. Gatuhi h/b for Mr. Njagi for the 9

th

Defendant

Ms. Mwachiro for the 4

th

Defendant

Mr. Mbuthia for the 10

th

Defendant

Ms. C. Nyokabi- Court Assistant