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Kirata v Kautuntarawa [2024] KIHC 23; Miscellaneous Application 2024-02556 (10 September 2024)

JUDGMENT
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1. The Applicant applied for an order granting leave to the Applicant to apply for an order of committal against the Respondents upon the ground that the Respondents disobeyed an order of this court, evidenced by a Writ of Possession dated 1^st December, 2023 by failing to give possession of the mwaneaba to the Applicants being told to do so by the sheriff.
   
2. In the Applicant’s submission, Mr Berina, set out that the judgment of this court (Hon. Chief Justice) in High Court Civil Case 29 of 2023 was issued on 13 October 2023 deciding that the Applicant can recover possession of their sublease where their mwaneaba and other properties are located, and the Respondents must surrender possession.
   
3. On 1 December 2023, this court issued the Writ of Possession directing the sheriff to execute the judgment in High Court Civil Case 29 of 2023.
   
4. On 22 December 2023, the Hon. Chief Justice in her ruling dismissed the Respondents’ application for a stay of execution of the judgment issued in High Court Civil Case 29 of 2023.
   
5. On 18 January 2024, the Applicant filed its application to enforce the judgment of this court and for an order of committal for the Respondents’ contempt of this court’s judgment and related orders.
   
6. The application was supported by the affidavit of Mamau Taake who is the Chairman of the KPC Tibereti Group. He explained that with respect to the judgment in Civil Case 29 of 2023, their Tibereti Group obtained a Writ of Possession giving them possession of a mwaneaba located in Tebukinnatu 824i. On 13 December 2023, the sheriff executed the Writ of Possession on the above-named Respondents however, the Respondents refused to leave the mwaneaba being prepared to go to prison in their struggle to retain possession of what they believed to be theirs.
   
7. In the Statement in Support by Mr Berina, supported by the affidavit of Mr Taake, set out that the refusal of the Respondents to leave the mwaneaba was a violation of the terms of the Writ of Possession as the Applicants are not able to recover possession of the mwaneaba.
   
8. The Respondents through their counsel Ms Kirata responded to the application by setting out that they are still in the concerned mwaneaba and on the land because they were told so by the Minister of Lands as well as the Lands Department. In saying so, there is no supporting documents or evidence to show this support. Ms Kirata, also requested for an adjournment which was rejected by this court.
   
9. Ms Kirata, insisted in her submissions that her clients will continue to stay on the land because the land is theirs and that it was not leased. Furthermore, she submitted that she will submit documentation of support from the Lands Department this week.
   
10. In considering both counsels’ submissions, an application for committal can be brought by a party as of right where it alleges that another party has committed a serious (not merely technical) contempt of court by breaching a court order. It is well accepted that the purposes of civil contempt proceedings include both;
    • Enforcement of the breached order (where still relevant), including deterring any future breach, and
    • Drawing the alleged contempt to the court’s attention so that it can be ruled on and sanctioned if appropriate (including by imprisonment).

(see cases Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799; and Ocado Group PLC and another v McKeeve [2022] EWHC 1663).

11. The purpose of this application as also discussed in number 10) is to enforce the breach of the order of this court by the Respondents and also deter them from any future breach and secondly, to sanction the contempt by way of imprisonment as strongly submitted by Mr Berina.
    
12. It is very clear that the application is to now enforce the judgment in High Court Civil Case 29 of 2023 and related orders. In addition, the Writ of Possession have been issued by this court for the Applicant to gain possession of the mwaneaba built on land Tebukinnatu 824i. However, the Respondents failed to comply with these orders made and the Writ of Possession and continue to stay and live in the mwaneaba and land.
    
13. The sheriff’s letter and report dated 14 December 2023 is clear that upon execution of the order, the Respondents and their families and everyone living in the mwaneaba were hostile against the sheriff and his team hence the difficulty in executing the orders and the Writ of Possession.
    
14. This shows a clear action of contempt of the judgment, orders and Writ of Possession issued by the Hon. Chief Justice. I agree with Mr Berina, that the only remedy now available in law and under our Rules is to commit the Respondents to prison for contempt. With respect to Ms Kirata’s submissions, the issues she raised are matters to be raised in a fresh application or case but not during this enforcement hearing.
15. Leave is therefore given to the Applicant to seek an order for committal against the Respondents.
    
16. Orders of this court:
    

1. Leave is granted to the Applicant to seek an order for committal against the Respondent;
2. The four Respondents namely, Kautu Kautuntarawa, Kiataake Kautuntarawa, Manikiata Tutu, and Nei Kautu Teteki shall be committed to prison by the Betio Police Officers (Officer Commanding Station, Betio and Officers) unless the Respondents, all their families and everyone occupying the mwaneaba and land leave the mwaneaba built on land Tebukinnatu 824i (as shown in the Writ of Possession) by tomorrow 11 September 2024 at 9am to allow the Applicant to gain possession of the mwaneaba and land on which the mwaneaba is built.

100. Costs of this application to be borne by the Respondents and paid to the Applicant, to be taxed if not agreed.
     

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MR ABUERA URUAABA
COMMISSIONER OF THE HIGH COURT