https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3272

Chirchir (Suing as the Legal Representative of the Estate of Chebutich Arap Ngeny (Deceased)) v Chairman BOM Kiptaldal Primary School & another (Environment and Land Judicial Review Miscellaneous Application 8 of 2017) [2026] KEELC 3272 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3272 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Judicial Review Miscellaneous Application 8 of 2017 LA Omollo, J May 28, 2026 Between Rasto Chirchir (Suing as the Legal Representative of the Estate of Chebutich Arap Ngeny (Deceased)) Plaintiff and The Chairman BOM Kiptaldal Primary School 1st Defendant The Secretary, Kiptaldal Primary School 2nd Defendant Ruling Introduction. 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 29th July, 2025. The application is expressed to be brought under Article 159 (2)(d) of the Constitution of Kenya, Section 5 of the Judicature Act and Sections 3, 3A & 63 of the Civil Procedure Act. 2.The application seeks the following orders;a.Spentb.That this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to institute Contempt of Court Proceedings against the Defendants/Respondents.c.That this Honourable Court be pleased to find that the Defendants/Respondents are in contempt of Order of 8th December, 2022.d.That this Honourable Court be pleased to issue an order of committal to civil jail of the Defendants/Respondents for a period of Six (6) months.e.That the Officer Commanding Police Station (OCS)—Sosiot Police Station be summoned to Court to explain reasons why he/she has failed to provide security to the Auctioneers.f.That the Officer Commanding Police Station (OCS) – Sosiot Police Station be summoned to Court to explain reasons why he/she has failed to effect warrant of arrest issued on 19th December, 2024.g.That the costs of this application be provided for. 3.The application is based on the grounds on its face and the supporting affidavit of Rasto Chirchir that is sworn on 29th July, 2025. Factual Background. 4.The Plaintiff/Applicant commenced the present proceedings in Kericho High Court Civil Suit No. 72 of 2005. 5.The said file went missing in the registry and he thereafter filed the Notice of Motion application dated 13th March, 2017 wherein he sought the following prayers;a.That this application be certified as urgent and service of the same be dispensed with in the first instance and heard ex parte. (sic)b.That the Honourable Court be pleased to allow the photocopies of the pleadings for reconstruction of Court file in respect of Kericho High Court Civil Suit No. 72 of 2005. 6.The application was allowed and the suit was heard in the present miscellaneous application. 7.In the Plaint dated 30th May, 2005 the Plaintiff/Applicant sought the following prayers;a.That the 1st Defendant is a trespasser on 1.3 acre portion in Kericho/Sosiot/768 and should vacate forthwith in default eviction order to issue. (sic)b.Mesne profits from the date of occupation and/or general damages for trespass.c.Costs of this suit with interest. 8.The Defendants/Respondents filed a Statement of Defence on 25th January, 2006 wherein they denied the averments in the Plaint and sought that Plaintiff/Applicant’s suit be dismissed with costs. 9.The Court delivered judgement on 30th June, 2022 in the following terms;a.The 1st Defendant is a trespasser on 1.3-acre portion in IR (sic) No. Kericho/Sosiot/768.b.The 1st Defendant should vacate forthwith from the 1.3-acre portion consisting in LR No. Kericho/Sosiot/768 within 30 days and default eviction orders to issue. (sic)c.General damages of Kshs. 100,000/= shall be paid within 30 days of delivery of this judgement by the Defendants to the Plaintiff, to compensate him for the wrongful entry onto his land.d.Costs of this suit and interests shall apply at a lower rate since the same was undefended. 10.The application under consideration first came up for hearing on 17th November, 2025 when the Court directed that it be canvassed by way of written submissions. 11.The matter was mentioned severally to confirm filing of submissions and on 12th March, 2026 it was reserved for ruling. The Plaintiff/Applicant’s Contention. 12.The Plaintiff/Applicant contends that he filed a Notice of Motion application dated 12th October, 2022 which application was allowed on 18th October, 2022. He goes on to state that the Court issued an order directing the OCS – Sosiot Police Station to supervise the eviction of the Defendants/Respondents from the suit parcel of land. 13.He also contends that the orders issued on 18th October, 2022 were served upon the Defendants/Respondents on 8th December, 2022. 14.He further contends that the Defendants/Respondents are still in occupation of a portion of the suit parcel of land and goes on to state that the Defendants/Respondents are in disobedience of Court orders which is causing him to suffer irreparable loss which cannot be compensated by an award of damages. 15.It is his contention that the Defendants/Respondents illegally trespassed onto a portion of the suit parcel of land without his consent and/or permission. 16.It is also his contention that unless the orders sought are granted, he stands to suffer irreparable loss and damage as the Defendants/Respondents have threatened to continue with their illegal activities. 17.It is further his contention that on 19th December, 2024, this Court issued a warrant of arrest against the Defendants/Respondents but the OCS has failed to effect it. The Defendants/Respondents Response. 18.The Defendants/Respondents filed a Replying Affidavit sworn by Kabwos Rono Chelangat the 2nd Defendant/Respondent on 14th November, 2025. 19.He deposes that he is the Secretary of the Board of Management of Kiptaldal Primary School and adds that he is also the acting Head Teacher. 20.He also deposes that the position of the 1st Defendant/Respondent is vacant as the Chairman resigned. 21.He further deposes that the Head Teacher one Gideon Ngeno had health issues and he was therefore appointed the acting head teacher on 20th May, 2025. 22.It is his deposition that the current Board of Management was not aware of the land dispute as it was inaugurated on 10th June, 2025. 23.It is also his deposition that upon service of the application under consideration, he went through their records and was unable to find the orders issued by this Court. 24.It is further his deposition that the Plaintiff/Applicant has attached to the affidavit in support of the application copies of Court orders that are marked as “RC-1” and “RC-2”. He goes on to state that the said orders do not have the Defendants/Respondents Stamp and/or any evidence of service. 25.He deposes that he convened a board meeting on 16th September, 2025 and neither of the members was familiar with the matter and goes on to state that they all agreed to undertake a survey of the land occupied by the school. 26.He also deposes that on 7th October, 2025 they wrote to the Kericho County Surveyor and he visited the school on 21st October, 2025. 27.He further deposes that the surveyor found that the school was in possession of a portion of land parcel No. Kericho/Sosiot/652, the entirety of land parcel No. Kericho/Sosiot/769, that was reserved for the school and a portion of land parcel No. Kericho/Sosiot/768, the suit parcel of land. 28.It is his deposition that the encroachment on the suit parcel of land was estimated to be 0.06 acres. 29.It is also his deposition that the Court in the judgement delivered on 30th June, 2022, ordered the Defendants/Respondents to vacate a 1.3-acre portion of the suit parcel of land. 30.It is further his deposition that at paragraph 11 of the judgement, the Plaintiff/Applicant admitted that the registered owner of the suit parcel of land sold a 1-acre portion of it to the school and that the school allegedly trespassed on a 1.3-acre portion of the land. 31.He deposes that as per the survey report, the Defendants/Respondents have not trespassed onto the suit parcel of land. 32.He also deposes that the Defendants/Respondents are liabilities to the estate of the deceased as the land that was purchased by the school is yet to be transferred. 33.He further deposes that this Court should consider the said survey report before issuing any further orders and goes on to state that he is advised by Counsel that while it’s true that the survey report was not filed during the hearing of the suit, it is in the interest of justice that the Court considers it. 34.It is his deposition that he is advised by counsel, that for the Plaintiff/Applicant to succeed in his contempt application, he has to meet the required threshold and adds that the Plaintiff/Applicant must prove that the Defendants/Respondents were aware of the Court order, that they had proper notice, that they acted in breach of the said order and that their disobedience was deliberate. 35.He reiterates that he was appointed as the acting Head Teacher on 20th May, 2025 and deposes that he was confirmed as the secretary on 10th June, 2025. 36.It is also his deposition that the Plaintiff/Applicant has not demonstrated service upon the new Chairman and Secretary to the Board of Management of the School and that they only became aware of the said orders upon service of the present application. 37.It is further his deposition that the Defendants/Respondents are law abiding citizens who have demonstrated the steps they have taken to comply with the orders of the Court and adds that the steps they took include resurveying the land occupied by the school to confirm the portion of the suit parcel of land that the school is alleged to have trespassed on. 38.He ends his deposition by stating that the Court should issue directions now that the school does not occupy the 1.3-acre portion of the suit parcel of land that the Court ordered them to vacate. Issues for Determination. 39.The Plaintiff/Applicant filed submissions on 16th February, 2026 while the Defendants/Respondents filed submissions on 11th February, 2026. 40.The Plaintiff/Applicant reiterates the averments in the affidavit in support of the application and submits that the Defendants/Respondents were served with the judgement that was delivered on 30th June, 2022. 41.The Plaintiff/Applicant also submits that the Defendants/Applicants have not filed an appeal. 42.The Plaintiff/Applicant further submits that the Defendants/Respondents have disobeyed the orders of the Court thereby frustrating him and denying him the use and enjoyment of the property. 43.The Plaintiff/Applicant concludes his submissions by urging the Court to allow his application as prayed. 44.The Defendants/Respondents submit on the following issues;a.Whether the orders sought in the application are merited.b.Costs of the application 45.On the first issue, the Defendants/Respondents rely on Section 34 of the Contempt of Court Act and submit that the contempt proceedings are based on an order that was issued on 18th October, 2022. 46.It is the Defendants/Respondents submissions that the application has been filed three years after the alleged acts of contempt and the application is therefore dead on arrival. 47.The Defendants/Respondents rely on the judicial decisions of John Githui Gatua (Suing as personal representatives of Michael Kaburia Theuri (Deceased) vs County Government of Turkana & another [2018] eKLR, Martha Wanjiku Nyutu & 2 Others vs Susan Mwihaki Njoroge & 2 Others [2018] KEELC 1654 (KLR) and submit that the Plaintiff/Applicant has not demonstrated that they had knowledge of the Court order. 48.The Defendants/Respondents reiterate the averments in their Replying Affidavit and submit that the application is seeking orders against the Officer Commanding Station (OCS) Sosiot Police Station who is not a party to the present proceedings. 49.The Defendants/Respondents rely on Article 50 of the Constitution of Kenya and submit that if the orders sought against Officer Commanding Station (OCS) Sosiot Police Station are granted, he will be condemned unheard. 50.The Defendants/Respondents rely on the judicial decision of Nthiga v Kimani & 7 Others (Environment and Land Appeal 007 of 2021) (citation not given) in support of their submissions. 51.The Defendants/Respondents conclude their submissions by urging the Court to dismiss the Plaintiff/Applicant’s application with costs. Analysis and Determination. 52.Having considered the Plaintiff/Applicant’s application, the response thereto and the rival submissions filed, my view is that the following issues arise for determination;a.Whether the Defendants/Respondents are in contempt of the orders of this Honourable Court.b.Whether the Defendants/Respondents should be committed to civil jail or whether they should be issued with a notice to show cause why they should not be committed to civil jail.c.Whether the Officer Commanding Station (OCS) Sosiot Police station should be summoned to Court to explain why he failed to provide security to auctioneers and why he failed to effect the warrants of arrest issued on 19th December, 2024.d.Who should bear costs of the application. A. Whether the Defendants/Respondents are in contempt of the orders of this Honourable Court. 53.Section 5(1) of the Judicature Act provides as follows:“The High Court and the Court of Appeal shall have the same power to punish for contempt of Court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate Courts.” (Emphasis mine) 54.Section 29 of the Environment and Land Court Act further provides that:“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” (Emphasis mine) 55.In the judicial decision of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi [2016] eKLR the Court cited with approval the book Contempt in Modern New Zealand which sets out elements of civil contempt as follows;“There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than Civil cases)(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant;(b)the Defendant had knowledge of or proper notice of the terms of the order;(c)the Defendant has acted in breach of the terms of the order; and(d)the Defendant's conduct was deliberate.” (Emphasis mine) 56.The Plaintiff/Applicant contends that he filed a Notice of Motion application dated 12th October, 2022 which application was allowed on 18th October, 2022. 57.The Plaintiff/Applicant also contends that the Court in allowing the said application, issued orders of eviction and directed the OCS- Sosiot Police Station to supervise the eviction of the Defendants/Respondents from the suit parcel of land. 58.It is the Plaintiff/Applicant’s contention that the said orders were served upon the Defendants/Respondents. 59.It is also the Plaintiff/Applicants contention that despite the issuance of the said orders, the Defendants/Respondents are still in possession of the suit parcel of land and they are therefore in disobedience of the orders of the Court. 60.The Plaintiff/Applicant has attached a copy of an order issued by this Court on 18th October, 2022. It is in the following terms:a.That the application dated 12/10/2022 is herein allowed as prayed.b.That the Respondents are directed to move out of the suit parcel of land being Kericho/Sosiot/768 within 30 days or there be an eviction in default which eviction shall be supervised by the Officer Commanding Station Sosiot Police Station in accordance with the law.c.That there be no orders as to costs. 61.The Plaintiff/Applicant has also attached an affidavit of service sworn by Vincent C. Lelgo on 30th October, 2022. He deposes that on 25th October, 2022 he served the order issued on 18th October, 2022 upon the OCS Sosiot Police Station and that the OCS accepted service by retaining his copy and signing a copy which was returned to Court. 62.A copy of warrants of arrest in execution have also been attached. They are directed to the Officer Commanding Station Sosiot Police Station and they required him to arrest the Chairman Kiptaldal Primary School unless he pays Kshs. 313,654/=. The warrants of arrest were issued on 19th December, 2024. 63.A copy of an Affidavit of Service sworn by Vincent Lelgo on 28th July, 2025 has also been attached. He deposes that on 1st July, 2025, he served the OCS Sosiot Police Station with warrants of arrest in execution issued on 19th December, 2025 and further deposes that the OCS accepted service and signed on the copy of the order that was returned to Court. 64.In response, the Defendants/Respondents contend that they were not served with the said orders issued by the Court. 65.As stated, the Plaintiff/Applicant has attached copies of various affidavits of service to his affidavit in support of the application. The said affidavits of service were sworn by Vincent C. Lelgo on 30th October, 2022, 22nd December, 2022 and 28th July, 2025 and they speak to service upon the OCS Sosiot Police Station. 66.There is no evidence of service of the orders of the Court issued on 8th December, 2022 upon the Defendants/Respondents. 67.The Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) held as follows;“On the other hand however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under 81.8 (1) (supra). Kenya's growing jurisprudence right from the High Court has reiterated that knowledge of a Court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings. For instance, Lenaola J in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR pronounced himself as follows:-“...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary” This position has been affirmed by this Court in several other cases including the Wambora case (supra).It is important however that the Court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the Court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty. This standard has not changed since the old celebrated case of Ex parte Langley 1879, 13Ch D. 110 (C.A), where Thesiger L.J stated as follows. at p. 119:“…the question in each case, and depending upon the particular circumstance of the case, must be, was there or was there not such a notice given to the person who is charged with contempt of Court that you can infer from the facts that he had notice in fact of the order which has been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt.” What then amounts to “notice”? Black’s Law Dictionary, 9th Ed defines notice as follows:-“A person has notice of a fact or condition if that person- Has actual knowledge of it;Has received information about it;Has reason to know about it;Knows about a related fact;Is considered as having been able to ascertain it by checking an official filing or recording.”(Emphasis mine) 68.In the above cited judicial decision, the Court of Appeal held that knowledge of a Court order suffices to prove service and it dispenses with the requirement of personal service for purposes of contempt proceedings. The decision goes on to explain what constitutes service. 69.It is important to note that the Plaintiff/Applicant is seeking that the Defendants/Respondents be found to be in contempt of the orders that were issued on 8th December, 2022. 70.The Orders issued on 8th December, 2022 are as follows;“a.That the application dated 25/10/2022 is herein allowed as prayed.b.That the OCS- Sosiot Police Station do provide adequate security to indomitable Auctioneers and District Surveyor Kericho during the undertaking of the eviction on land parcel No. Kericho/Sosiot/768.c.That the Costs of this application be borne by the Defendants.” 71.It is evident that the orders issued on 8th December, 2022 were directed to the OCS – Sosiot Police Station. It is also evident that the said orders were not issued against the Defendants/Respondents herein. 72.That being the case, the Plaintiff/Applicant has not demonstrated that the Defendants/Respondents are in breach of the terms of the Court order that was issued on 8th December, 2022. B. Whether the Defendants/Respondents should be committed to civil jail or whether they should be issued with a notice to show cause why they should not be committed to civil jail. 73.Given my finding on issue (A) above, the question of committal to civil jail and/or issuance of a notice to show cause is not ripe for determination. C. Whether the Officer Commanding Station (OCS) Sosiot Police station should be summoned to Court to explain why he failed to provide security to auctioneers and why he failed to effect the warrants of arrest issued on 19th December, 2024. 74.Under prayers (5) and (6) of the application under consideration, the Plaintiff/Applicant seeks that The Officer Commanding Station Sosiot Police Station be summoned to Court to explain why he failed to provide security to the auctioneers and why he failed to effect the warrants of arrest issued on 19th December, 2024. 75.There is no evidence on the Court record to show that the Officer Commanding Police Station – Sosiot Police Station was served with the application under consideration but there is evidence of service of the orders of this Court upon him. 76.I see no impediment in summoning him to explain why the orders of this Court have not been complied with. D. Who should bear costs of the application. 77.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 78.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 79.Taking the foregoing into consideration, I find that the Plaintiff/Applicant’s Notice of Motion application dated 29th July, 2025 partially succeeds and I order and direct as follows;a.The Officer Commanding Police Station (OCS)—Sosiot Police Station is hereby summoned to attend court and explain why he/she has failed to provide security to the Auctioneer and the District Surveyor Kericho for purposes of undertaking eviction on land parcel No. Kericho/Sosiot/768.b.The Plaintiff/Applicant shall have costs. 80.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 28TH DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Bii for the Plaintiff/Applicant.Miss Chepkemoi for the Defendants/Respondents.Court Assistant: Mr. Joseph Makori.