[2024] KEELC 13925 (KLR)

Choge & 2 others v Kirwa & another (Environment & Land Case 93 of 2014) [2024] KEELC 13925 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13925 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case 93 of 2014

EO Obaga, J

December 19, 2024

Between

Abraham Kiprop Choge

1st Plaintiff

Nelson Kyego Choge

2nd Plaintiff

Elphas Kipchirchir Choge

3rd Plaintiff

and

Thomas Kirwa

1st Defendant

Abraham Rotich

2nd Defendant

Ruling

1. Before me is the Plaintiffs/Applicants’ Notice of Motion Application dated 13th March, 2024 and Amended on 19th June, 2024. They seek the following orders:-i.Spentii.Spentiii.Spentiv.That the Respondents Thomas Kirwa And Abraham Rotich be cited for contempt and be committed to civil jail for a term of sic (6) months until they purge their contempt and complies (sic) with the orders of the Honourable Court issued on 4th November, 2022 and served upon them on 9th November, 2022. v.That this Honourable Court be pleased to direct the O.C.S Naiberi police station to arrest the Respondents/Defendants and produce them in court to answer the charges of disobedience of court orders issued on 4th November, 2022 and further threatening the Applicants on parcel of land known as Plateau/Kipkabus Block 4(Lemolkwo)/24. vi.That in the alternative and without prejudice to the foregoing the honourable court be pleased to order the property of the Respondents to be attached for disobedience or breach of the orders issued by the court on 4th November, 2022 and served upon them on 9th November, 2022. vii.That costs of this Application be provided.

2. The Application is premised on the grounds set out on its face and supported by the Affidavit of Abraham Kiprop Choge, the 1st Plaintiff herein. The Plaintiffs’ case is that the court delivered its judgment in this suit on 30th June, 2022 in their favour. The judgment declared them owners of Plateau/Kipkabus Block 4(Lemolkwo)24 (the suit property). It also issued a permanent injunction against the Defendants and directed them to vacate the land or be evicted therefrom. The Defendants, having been served on 9th November at their respective homes, were aware of the existence of the orders, and they even applied to set aside the judgment and consequential orders, which application was dismissed on 27th July, 2023. Despite this, the Respondents on 9th March, 2024 brought tractors and forcefully ploughed the land contrary to the said orders, which are valid from the moment they were made and command obedience. It is the Plaintiffs’ case that if the orders are not granted, the decree issued on 4th November, 2022 shall be in vain and they will be subjected to irreparable loss and damage. They urged that the Respondents be punished for violating the court’s orders.

3. Thomas Kirwa, the 1st Defendant swore 2 Affidavits one dated 22nd April, 2024 and the other dated 22nd July, 2024 opposing the Application herein. It is his case that he does not live on and neither is he the registered owner of the suit property. According to him, he has not shifted or trespassed into the suit land, and that the application seeks to evict him and his family from their current place. He deponed that they had ploughed their portion of land separate from the suit property, averring that the orders do not bar them from using their own land. He alleged that the orders as they are cannot be enforced as there is no report by the surveyor or registrar of land that he has trespassed and to what extent, hence called for a site visit to determine this. He deponed that he had not interfered with the Plaintiffs’ ownership in any way, instead it is the Plaintiffs who had attempted to evict them from land belonging to them. He deponed that if the orders are granted they will be evicted from their rightful land which is adjacent to the suit land. He denied disobeying the court orders as they do not touch on the land he occupies, whose boundary has not shifted since he was born. He deponed that the application has no merit and should be dismissed with costs to him.

Submissions: 4. With respect to this Application, only the Plaintiffs filed submissions dated 11th October, 2024 which they titled “Applicants/Plaintiff’s Further Submissions”, although there are no earlier submissions on the same. In the said submissions, Counsel for the Plaintiffs submitted that the jurisdiction of the court to punish for contempt is derived from Section 5 of the Judicature Act, CAP 8 LOK. He submitted that the Respondents did not oppose the application nor was there any indication that the Plaintiffs were served with the Replying Affidavit the Defendants claimed on 18th June, 2024 to have filed. Counsel reiterated that the Respondents were duly served with the orders of court on 9th November, 2022. That they are aware of them, having unsuccessfully applied to set them aside, yet they have obeyed the orders for two consecutive years.

5. Counsel submitted that the standard of proof required in cases of contempt is higher than that in ordinary Civil Cases, and that for a finding of contempt, it must be demonstrated that there was wilful and deliberate disobedience. He argued that the Plaintiffs had demonstrated the fact of wilful and deliberate disobedience of the court orders to the required standard and the court thus ought to punish the Defendants by committing them to civil jail until they purge the contempt. Counsel asked that the application be allowed as prayed. Counsel relied on the following cases: Econet Wireless Kenya Limited vs Minister for Information and Communication Technology of Kenya (2005) eKLR, Oilfield Movers Ltd vs Zahara Oil & Gas Limited (2020) eKLR and Gatharia K. Mutitika vs Baharini Far Ltd (1985) KLR 227.

Hearing and Determination: 6. I have carefully considered the application along with its supporting grounds and the replying affidavit filed in opposition thereto, as well as the submissions made by counsel. The issue for determination is:-i.Whether the Plaintiffs have proved to the required standard that the Defendants are in breach of the orders of this court

7. However, before I delve into the application, I must address the Plaintiffs’ allegation that the Application herein is unopposed. I have found on the e-filing platform two Replying Affidavits to this Application, one dated 22nd April, 2024 which I presume was in response to when the Application was first filed. The second one is dated 22nd July, 2024 which aligns with date when the Motion was amended on 19th June, 2024. Both however indicate that they are in response to the Notice of Motion dated 13th March, 2024 which was later amended to the Motion being dealt with herein. The Plaintiffs cannot therefore claim that the motion is unopposed.

i. Whether the Plaintiffs have proved to the required standard that the Defendants are in breach of the orders of this court 8. Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. The instructive provision granting courts power to punish for contempt of Court orders is section 5(1) of the Judicature Act. The Environment and Land Court at Section 29 also empowers this court to punish for contempt and it provides that:-“29. OffencesAny 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.”

9. The need for courts to punish for contempt is explained in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, where Mativo J. stated that:-“31. A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction in terms, an “oxymoron.” Contempt power is something regarded as intrinsic to the notion of court; even obvious, I would say. In the common lawyer’s eye, the power of contempt “is inherent in courts, and automatically exists by its very nature.”

10. Elsewhere in his decision in the above case, Mativo J. listed the elements that need to be proved for a party to be found guilty of contempt of court orders, as follows:-40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of wilfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-“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) that:-(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’.”

11. Going by the above list, the first element an Applicant is required to prove is that the terms of the order were clear and unambiguous and were binding on the Defendant. I have seen the decree issued on 4th November, 2022 which sets out the orders as follows:-a.A declaration be and is hereby issued that the Plaintiffs are the legal and rightful owners of land parcel Bo. Plateau/Kipkabus Block 4(Lemolkwo)24. b.A permanent order of injunction be and is hereby issued restraining the defendants both jointly and severally and or their agents and/or servants from interfering and or dealing in any way with the Plaintiffs’ parcel of land no. Plateau/Kipkabus Block 4(Lemolkwo)24. c.An order be and is hereby issued against all the defendants both jointly and severally to vacate and or be evicted from the plaintiffs’ parcel of land number Plateau/Kipkabus Block 4(Lemolkwo)24. d.Costs and interests to the plaintiffs.

12. There can be no dispute that the orders contained in the decree as clear and unambiguous. As testament to this, none of the parties herein registered any complaint that the orders were unclear or that there was any ambiguity that the court needed to clear or explain. It is also telling that none of them sought any interpretation of the orders from this court. Being parties to this suit, the Defendants are automatically bound by the orders issued herein. The first requirement has thus been proven.

13. The second requirement is that the Defendant must have had knowledge of or proper notice of the terms of the order. It is important 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 of the existence of the order of the court forbidding it. In the Affidavit of Service sworn by Vincent K. Ambani on 15th November, 2022 he deponed that he received instructions from the firm of Bungei & Murgor Advocates to effect service. He travelled to Kipkabus on 9th November, 2022 and served the decree on the Defendants herein. That on the same day he proceeded to the offices of M/S Morgan Omusundi, the Defendants’ Advocate on record and effected service on Mr. Omusundi. They all received the decree but refused to sign on the return copy. It is worth noting that the fact of service has not been denied by the Defendants.

14. That notwithstanding, the Defendants filed an Application dated 8th March, 2023 seeking to have the judgment and all consequential orders thereto set aside. This could not have been possible if the Defendants were unaware of the orders issued by this court. They must have been aware of the orders to be able to issue instructions to file the Application to set aside the judgement. There can be no doubt therefore, that the Defendants were at all times aware of the orders made on 30th June, 2022 and contained in the decree issued on 4th November, 2022.

15. Thirdly, it must be shown that the defendant has acted in breach of the terms of the order. The act complained of in the instant application is that the Defendants ploughed the suit property despite the existence of the court orders restraining them from interfering or in any way dealing with the suit property. The 1st Defendant’s response to this allegation is that he did not plough the suit land but his own land which is adjacent thereto. He deponed that the order does not bar him from using his land. That may be true, however aside from that, he did not give this court the parcel number of this land he alleges to belong to him. This court is not convinced therefore that there is any other parcel other than this suit property that the 1st Defendant and his family ploughed. If there was, the Defendant ought to have annexed a title to it or included a description fit enough to identify it. As a result, I am convinced that the Defendants are not ploughing the Plaintiff’s land, and instead utilising their own land.

16. Finally, the defendant’s conduct must be shown to have been deliberate. It is trite that in order to find a person guilty of contempt, there must be proof of wilful and intentional disobedience of a court order. When determining a contempt application, a court is primarily concerned with enquiring whether the alleged contemnor is guilty of intentional and wilful violation of the order of the court. undoubtedly, every party is expected to obey the orders of the court in its spirit and substance. The Supreme Court in Republic vs Ahmad Abolfathi Mohammed & Another [2018] eKLR made the following observations:-“(23)Authorities on the necessity to punish for contempt are legion. We have considered those provided by the respondent, and also cite the following, in affirmation of the principle.(24)In Econet Wireless Kenya Ltd V. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 of 1990 (unreported), where the Court of Appeal stated as follows:“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors... In Hadkinson V. Hadkinson (1952) 2 All E.R. 567, it was held that: It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.”

17. Despite knowing of the existence of the court orders, the Defendants still went ahead to plough the suit land in contravention thereof. Under the law, it matters not that the Defendant believes the order is irregular of void, they are still obliged to obey it until and unless it is set aside, varied or discharge. Therefore it matters not that there is no report by either the surveyor or registrar of land that the Defendants have trespassed onto the suit property. The undisputed fact is that there is a judgment to that effect and a decree emanating therefrom, and the Defendants were still under an obligation to abide by those orders. Their disobedience to the court orders can only be deliberate and wilful.

18. If the Defendants were dissatisfied with the said judgment/decree, they had the option of appealing the same. They ought not and should not have resorted to blatant disregard of the orders on the flimsy excuse that there is no report. In any event, as a party to the suit, the Defendants were at liberty to apply for and obtain the said report prior to judgement and presented it to court, and they have offered no reason why they could not do so. This is not an appeal or a fresh suit where parties can apply to have fresh investigation into the facts by calling for a site visit, it is too late in the day.

19. Indeed, due to the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the standard of proof an applicant must surmount in such applications is higher than that assigned to ordinary civil cases. In Gatharia K. Mutikika vs Baharini Farm Ltd (1985) KLR 227, the court explained that:-“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…… it must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” (own emphasis)

20. Applying the principles discussed herein above to the facts of this case, I am persuaded that the Plaintiffs have demonstrated to the required standard that the Defendants wilfully failed, refused and or neglected to obey the court orders contained in the decree. I therefore find the Defendants in contempt of the orders of this court made on 30th June, 2022 and issued on 4th November, 2022. The Plaintiffs’ Application therefore succeeds save for prayer No. 3A which seeks to have the property of the Defendants attached for disobedience of court orders. Section 29 of the Environment and Land Court Act (produced) above does not list the attachment of property as a means to punish for contempt, it only imposes a fine and a jail sentence.

21. To that end, the following orders shall issue:-a.That the Defendants/Respondents Thomas Kirwa And Abraham Rotich are hereby cited for contempt of the orders of this court. Accordingly, I order that they appear in person before this court on a date to be assigned by the court to show cause why they should not be committed to civil jail or pay a fine.b.In default of appearance as directed, a warrant of arrest shall issue against them and they shall be committed to civil jail for a period of six (6) months or pay a fine as may be determined by the court.c.Having succeeded in this application, the Plaintiffs shall have the costs of this Application.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 19TH DAY OF DECEMBER, 2024. E. O. OBAGAJUDGEIn the virtual absence of parties who were aware of the date of ruling.Court Assistant –LabanE. O. OBAGAJUDGE19TH DECEMBER, 2024