Cheboi v Kwambai & 4 others (Succession Cause 311 of 2012) [2026] KEHC 10880 (KLR) (17 July 2026) (Sentence)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **SUCCESSION CAUSE NO. 311 OF 2012** **IN THE MATTER OF THE ESTATE OF KIMORU ARAP SOSIO (DECEASED)** **ROSALLY JEPKORIR CHEBOI……………………………PETITIONER/OBJECTORS** **VERSUS** **WILLIAM KIBET KWAMBAI.............................****..........1ST** **BENEFICIARY/****CONTEMNOR** **ERICK NGETICH KWAMBAI.....................................2ND BENEFICIARY/ CONTEMNOR** **VERSUS** **WILSON MITEI.........................................................................1ST CAVEATOR/OBJECTOR** **BARNABAS MITEI CHEMWOLO.........................................2ND CAVEATOR/OBJECTOR** **THOMAS KIPROTICH KIMITEI...........................................3RD CAVEATOR/OBJECTOR** **SENTENCING UPON A FINDING OF CONTEMPT OF COURT** 1. By the Ruling I delivered herein on 19/09/2025 determining the Caveators’ Application seeking a finding of contempt of Court against the 1st and 2nd Beneficiaries-Contemnors, I stated, ***inter alia***, as follows: ***“32. As aforesaid, it is not in dispute that the sole asset forming the estate of the deceased herein is the parcel of land known as Lelan/Kaptalamwa/119 measuring approximately 50.8 Hectares (about 125.5 acres). Out of that acreage, 20 acres is claimed jointly by the Caveators and the Respondents, being allegedly a portion purchased jointly by their respective fathers (brothers) from the deceased, during his lifetime.*** ***33. The Caveators and the Respondents both claim to be, and to have always been, in occupation of the said 20 acres portion. I gather that the Petitioner (and by extension, the family of the deceased) seem to only recognize the claim by the Caveators, and seem to disown the claim by the Respondents. However, even between the Caveators and the Respondents, there seems to be a dispute as regards apportionment of the 20 acres as between themselves, and the extent of boundaries. According to the Caveators, the Respondents have encroached into their portion. The above is therefore what forms the background to the preservatory orders issued herein and which the Respondents are accused of having disobeyed.*** ***34. As already stated therefore, Hon. Justice O. Sewe, on 4/09/2020, issued the order premised, inter alia, as follows:*** ***“2. There be a stay of eviction of the 1st, 2nd & 3rd Objectors applicants (sic) as well as their families, servants and/or agents from L.R. No. Lelan/Kaptalamwa/119 pending further orders by the duty Judge on 9th September 2020 (09.09.2020)”*** ***“35. On 9/9/2020, Hon. Justice S. M. Githinji, ordered, inter alia, as follows:*** ***“1. The interim orders be and are extended*** ***2. The beneficiaries do stop encroaching in areas where they do not reside.*** ***3. They are to respect the order of status quo.*** ***4. Petitioner and beneficiaries given 14 days leave to respond.*** ***5. Mention on 07.10.2020 for further orders.”*** ***“36. On 30/11/2020, Hon. Justice S. M. Githinji, further ordered, inter alia, as follows:*** ***“1. ......................................*** ***2. Orders granted on 09/09/2020 meanwhile be observed (interim orders extended).*** ***3. Mention for directions on 31.10.2021.”*** ***“37. On 21/12/2020, Hon. Justice S. M. Githinji, ordered that:*** ***“1. The OCS Kapcherop Police Station to ensure the interim orders are complied with to ensure peace on the ground”*** ***“38. According to the Caveators, the Respondents breached the said orders because on 18/12/2020, they used brute force to evict the Caveators and took over the portion of the suit land on which the Caveators reside and occupy. The Caveators have urged further that, to date, the Respondents have refused to give up possession of the portion, approximately 3 acres. ............”*** 1. I then agreed with the Caveators and found the Contemnors in contempt of the said Court orders dated 4/09/2020, 9/09/2020 and 30/11/2020. I then fixed a date when the Contemnors would attend Court for mitigation before a date was set for sentencing. I also granted them a period of 10 days to purge or undo the contempt (including granting possession of the subject portion back to the Caveators, allow the Caveators full access, and remove fencing). I also stated that “***compliance with the said order or lack thereof may be considered at the time of sentencing***”. 2. On a later date, I allowed the parties to file brief respective Affidavits on the issue of whether or not the Contemnors would have purged the contempt within the 10 days given by the Court before the sentencing. From the **Judiciary Case Tracking System** (**CTS**) portal, the respective Affidavits filed by each of the two Contemnors on the issue, were both sworn on 27/10/2025, while the one jointly sworn by the 3 Caveators was sworn on 24/01/2026. The Contemnors also filed the Further Affidavit sworn by the 2nd Contemnor on 20/01/2026. The Affidavits however contain conflicting averments on whether or not the Contemnors have now purged the contempt. 3. According to the Contemnors, they have now removed the fencing, opened the gate, granted possession and allowed full access of the subject portion of land to the Caveators. They then invited the Court to visit the site for purposes of verifying the facts. On their part, the Caveators contend that no purging has been made as alleged as no fencing has been uprooted, that parts of the fencing simply fell down due to the haste with which it had been erected, which natural collapse does not amount to purging, that the contemnors did not contact the Caveators to conduct the handing-over, and that by failing to remove the potato crop which is still in *situ*, there is a real danger of the Contemnors remaining thereon under the guise of harvesting the potatoes even after conclusion of these contempt proceedings. They also welcomed the conducting of a site visit by the Court. 4. After adjournments, the matter came up for mitigation on 26/01/2026. **Mr. Cheptarus**, Counsel for the Contemnors, reiterated that the Contemnors have now purged the contempt as they vacated the land and have promised not to repeat the impugned conduct and shall maintain Court and order. He asserted that the Contemnors are apologetic and will never repeat the conduct which was not deliberate, and that they did not intend to offend the Court, which they respect. He also described them as first offenders, and prayed for a non-custodial sentence since custodial sentence will create unbearable hardships as they have families and children who depend on them. He submitted further that the Contemnors are 64 and 49 years old respectively, with college or school-going children, that the 1st Contemnor has a bed-ridden sick wife and has several loans to repay, and the 2nd Contemnor is sickly and requires constant medication. 5. On his part, **Mr. C. F. Otieno**, for the Caveators, reiterated that the Contemnors have not yet purged the contempt as alleged, submitting that the Contemnors’ animals are still grazing on the subject portion of land. He also contended that no evidence has been tendered to demonstrate that the Contemnors are undergoing sicknesses or financial difficulties, urging that the situations alleged are being faced by everyone. He also pointed out that prison facilities have adequate medical facilities. 6. In respect to a question from the Court, the Contemnors denied fencing off the portion of land or planting crops or grazing animals thereon, and contended that all they did was to erect a gate which they have now removed. **Determination** 1. As stated in my Ruling rendered on 19/09/2025, “***contempt of Court***” is conduct or action that defies or disrespects authority of the Court, and in **Black’s Law Dictionary 9th Edition**, is defined as follows: **“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.** 1. That an order of the Court must be obeyed as a matter of course cannot be in doubt, and this has been restated in a long line of case law. An example is the Court case of **Refrigeration and Kitchen Utensils Ltd. –vs- Gulabchand Popatlal Shah & Another, -Civil Application No. 39 of 1990**, in which the Court of Appeal stated as follows: **“… It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times.”** 1. I also cited the Court of Appeal case of **Shimmers Plaza Limited v National Bank of Kenya Limited (Civil Appeal 33 of 2012) [2015] KECA 945 (KLR) (Civ) (18 February 2015) (Ruling)**, in which it was stated that: **“We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said:-** **“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.** 1. In determining the sentence to impose, I consider that according to the Caveators, which the Court upheld, the Contemnors breached the orders by using brute force to evict the Caveators and took over the 3-acre portion or thereabouts of the land on which the Caveators reside and occupy. Further according to the Caveators, which the Court again upheld, the Contemnors erected a fence and are cultivating on the portion of land occupied by the Caveators despite the presence of a clearly marked boundary. There is also indication that the Contemnors purportedly “sold off” the entire 20 acres in the year 2014 to third parties who, together with the Respondents, are fighting the Caveators on their portion of land. Due to that timing of the alleged sale, if any, it would not form part of the specific orders the Contemnors were found to have disobeyed. That issue of sale to third-parties before the Court had distributed the estate herein and the legal effect thereof, is therefore a separate live issue to be determined at the trial and appropriate orders made. 2. I also consider that the Contemnors did not deny committing the alleged acts of disobedience attributed to them and in fact appeared to unapologetically justify the acts. 3. As stated in the said Ruling, the subject orders were interim in nature, and read cumulatively, directed that awaiting further directions of the Court, there be no eviction of the Caveators from the suit land, the Contemnors stop encroaching into areas where they do not reside and to respect the *status quo*. Instead, with full knowledge of the orders, the Contemnors disobeyed the orders and carried out actions performing exactly what the Court orders expressly directed them not to do. Even though they have in their present Affidavits alluded that they are apologetic and remorseful, this alleged position appears contradictory since despite admitting in their earlier Affidavits, and in fact basically “chest-stumping” that they did erect a gate and fenced off the area because they were not served with the subject orders, in their response to my question in Court this time, they turned around and denied erecting a fence. This kind of “flip-flopping” creates serious doubts about the Contemnors’ candidness. 4. On whether or not the Contemnors have now purged the contempt, I will not make an express or conclusive finding thereon at this stage as the parties have put forward conflicting positions thereon. Since the substantive part of this case is still pending determination, I will leave that determination to the trial Court to make either at the end of the case or earlier, if moved. In any case, and although the parties turned the focus of the pre-sentence mitigation hearing to be on the issue of whether or not the Caveators have now purged the contempt, such purging was not by itself, to be the determinant of the kind of sentence that the Court would impose but as I expressly stated in my said Ruling rendered on 19/09/2025, all I stated was that “***compliance with this order or lack thereof may be considered at the time of sentencing***”. 5. In concluding, I reiterate the statement made by the Court of Appeal in the said case of **Shimmers Plaza Limited v National Bank (supra)** that: **“The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on us by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy. We think we have said enough to send this important message across.”** **Final Orders** 1. Upon consideration of all the above matters and circumstances, I order as follows: 2. **Each** of the two Contemnors is hereby sentenced to serve **forty-five (45) days** imprisonment for contempt of Court, which prison term shall commence with immediate effect, save that they shall be released from custody and set at liberty on condition that they each pay a fine of Kshs 100,000/-. 3. The Court reserves its liberty to punish the Contemnors further and/or impose any additional penalties and/or sanctions should it find that the Contemnors still continue or persist in their acts of contempt such as failing to remove the gate and fence they had, in disobedience of the Court orders, erected to block off the Caveators from accessing the subject portion of land, or failing to grant possession of the subject portion of land back to the Caveators, or blocking the Caveators from accessing the portion, or cultivating or planting crops or grazing animals thereon. 4. As I have now proceeded on transfer, this file shall now be taken over by the Judge who has replaced or succeeded me in this station and who shall henceforth proceed to handle it conclusively. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JULY 2026** **……………………..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Mr. Cheptarus for the Contemnors** | | | **Ms. Kigen for the Petitioners** | | | **N/A for all other parties** | | | **Court Assistant: Brian Kimathi** | |