[2024] KEHC 3596 (KLR)
The court found that the 1st Respondent had repeatedly disobeyed court orders by intermeddling with the estate, specifically by cutting down trees and thereby wasting estate assets. While these actions constituted aggravating circumstances, the court also considered the 1st Respondent's expression of remorse and the...
Source-derived case information.
- Citation
- [2024] KEHC 3596 (KLR)
- Parties
- Applicant: Grace Njeri Gichuhi; Applicant: Godfrey Kihuha Gichuhi; Respondent: Moses Muiru Gichuhi; Respondent: Jennifer Muthoni Gichuhi; Respondent: Michael Gichuhi Wanjiku
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 8 of 2019
- Procedural Posture
- Succession Cause / Sentencing for Contempt of Court
- Outcome
- 1st Respondent sentenced to a non-custodial two-month imprisonment, suspended, with warning of custodial sentence upon breach.
- Judges
- A Mshila
- Legal Topics
- Contempt of Court, Intermeddling With Estate, Sentencing Principles, Remorse and Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Njeri Gichuhi
Applicant
Godfrey Kihuha Gichuhi
Applicant
Moses Muiru Gichuhi
Respondent
Jennifer Muthoni Gichuhi
Respondent
Michael Gichuhi Wanjiku
Respondent
Procedural Posture
Succession Cause / Sentencing for Contempt of Court
Legal Issues
- 1 Whether the 1st Respondent should be punished for contempt of court for disobeying court orders relating to the estate of the deceased.
- 2 What is the appropriate sentence for the 1st Respondent given the facts and circumstances, including mitigation and aggravating factors.
Ratio Decidendi
The court found that the 1st Respondent had repeatedly disobeyed court orders by intermeddling with the estate, specifically by cutting down trees and thereby wasting estate assets. While these actions constituted aggravating circumstances, the court also considered the 1st Respondent's expression of remorse and the fact that he was a first offender. Given the family context and the plea for leniency, the court determined that a non-custodial sentence was appropriate. The 1st Respondent was sentenced to a suspended two-month imprisonment, with a warning that any further breach would result in the custodial sentence being enforced for the remainder of the term. The court emphasized the...
Court Disposition
1st Respondent sentenced to a non-custodial two-month imprisonment, suspended, with warning of custodial sentence upon breach.
Orders
- A non-custodial sentence of two months imprisonment is imposed on the 1st Respondent, suspended for the period.
- If the 1st Respondent breaches during this period, the non-custodial sentence shall be vacated and he shall serve the custodial sentence for the remainder of the term.
Full Case Text
Judgment text and source record
34 paragraphs
In re Estate of Michael Gichuhi Muiru (Deceased) (Succession Cause 8 & 4 of 2019 (Consolidated)) [2024] KEHC 3596 (KLR) (26 January 2024) (Ruling)
Neutral citation: [2024] KEHC 3596 (KLR)
Republic of Kenya
In the High Court at Kiambu
Succession Cause 8 & 4 of 2019 (Consolidated)
A Mshila, J
January 26, 2024
Between
Grace Njeri Gichuhi
1st Petitioner
Godfrey Kihuha Gichuhi
2nd Petitioner
and
Moses Muiru Gichuhi
1st Respondent
Jennifer Muthoni Gichuhi
2nd Respondent
Michael Gichuhi Wanjiku
3rd Respondent
Ruling
1. Vide a determination of this Honourable Court delivered on the 18th day of August, 2023 the 1st Respondent was found guilty of contempt of the court orders of 23rd September, 2022; his counsel was invited on the 30th October, 2023 to make pleas in mitigation before sentencing;
2. Mr. Musyoka Counsel for the 1st respondent submits that court orders should be taken seriously and that this is the first time they are participating in contempt proceedings. That his client failed to consult him and that his client did not know the consequences of inter-meddling. He contended that his client was desperate as he needed funds. That his client should have sought a court order so as to remove the cabros. It was submitted that ignorance is no defence but it is a mitigating factor.
3. Counsel for the 1st Respondent submitted that the 1st Respondent was extremely remorseful and pleaded for a pardon or a lenient sentence or a non-custodial sentence; The court was also urged to grant justice with mercy by pardoning the 1st respondent as he will not repeat and that he has learnt his lessons.
4. In his response Mr. Kirimi for the Petitioner submitted that the 1st Respondent be found to be in contempt as he has disregarded many court orders and that this was the third contempt application to be filed. The 1st respondent was said to feel a sense of entitlement and that he deliberately chooses to disregard. The court was urged to issue a firm sentence as the 1st respondent will not cease from committing contemptuous acts as he benefits from selling the trees. The 1st respondent was urged to reimburse to the estate what he had taken away. It was submitted that ignorance of the law is no defence and that in any case, the 1st respondent is not remorseful.
ANALYSIS 5. It is the duty of this Court to impose a sentence that meets the facts and circumstances of the case;
6. This Court has taken into consideration the aggravating circumstances in the commission of the contempt offence in that the 1st Respondent repeatedly cut down trees which could not be restored which acts amounted to wasting of the value and assets of the estate.
7. The mitigating factor taken into consideration by this Court are that the 1st Respondent has expressed his remorse and states that he is a first offender.
8. The applicable law that governs contempt of court is set out at Section 5 of the Judicature Act which empowers this Court to mete a punishment for contempt of court so as to uphold the authority and dignity of the court.
9. The offence of contempt of court is punishable by a fine, imprisonment, confiscation of assets or any other punishment that the court may find to be suitable in the circumstances of the case. If the contemnor admits the contempt and wishes to apologize to the court this would have the likelihood of reducing the seriousness of any punishment imposable by the court.
10. Having regard to the fact that the parties herein are siblings and the 1st Respondents plea in mitigation that he is truly remorseful and shall hence forth desist from such unbecoming conduct; this Court is satisfied that this being a family matter the 1st Respondent is deserving of leniency; this Court finds that the appropriate sentence for the 1st Respondent is a suspended sentence of two (2) months; during this period the 1st Respondent is hereby cautioned against committing any acts that may constitute intermeddling with the estate of the deceased; in the event of breach during this period the non-custodial sentence shall be vacated and the 1st Respondent shall serve the custodial sentence for the remainder of the term.
Findings & Determinations 11. For the foregoing reasons this Court makes the following findings and determinations;i.A non-custodial sentence of two (2) months imprisonment is found to be an appropriate sentence for the 1st Respondent.ii.In the event of breach during this period the non-custodial sentence shall be vacated and the 1st Respondent shall serve a custodial sentence for the remainder of the term.
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 26TH DAY OF JANUARY, 2024. HON. A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantKirimi – for Petitioners (4/2019) For Respondents (8/2019)
Musyoka and Karanu – for Executor (8/2019)Mathenge – h/b for Maina for 2nd Respondent and 3rd Respondent (4/2019)2| Page