[2021] KEHC 5871 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 59 OF 2007

IN THE MATTER OF THE ESTATE OF WILLIAM KIPKOSGEI KIPTUM (DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR CONTEMPT OF COURT

BETWEEN

ESTHER JEPTANUI KIPTOO................................1ST OBJECTOR/APPLICANT

EDNA JESANG KOSGEI........................................2ND OBJECTOR/APPLICANT

AND

EUNICE CHEBICHII KIPKOSGEI.........................................1ST PETITIONER

VIOLAH CHERUTO KIPTUM................................................2ND PETITIONER

RULING

[1]The Notice of Motion dated1 March 2021was filed herein by the two objectors,Esther Jeptanui KiptooandEdna Jesang Kosgei.It is expressed to have been brought pursuant tothe Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013and theHigh Court (Practice and Procedure) Rules,for orders that the two petitioners/respondents be cited for contempt for having disobeyed the orders of this Court issued on3 February 2021. The applicants accordingly prayed that:

[a]An order of committal to prison be made againstEunice Chebichii Kipkosgeiand Violah Cheruto Kiptumfor such period not exceeding six (6) months as this Court may deem fit; or that the contemnors do pay substantial amount of money within a specified period until they purge the contempt and obey the said orders;

[b]That the OCS, Moiben Police Station, be ordered to provide security in enforcement of the orders of the Court;

[c]The costs of the application be provided for.

[2] The application was based on the grounds that this Court made Orders on 3 February 2021 which, inter alia, stayed the Judgment delivered herein on 8 November 2019 and any other proceedings in this matter pending the hearing and determination of the intended appeal; and allowed the applicants to continue utilizing, without hindrance, the portion of land parcel number Moiben/Moiben Block 5(Merewet)228, measuring approximately 20 acres, which they had hitherto been utilizing, pending the hearing and determination of the appeal. It was further the contention of the applicants that the order was extracted and served upon the respondents together with a penal notice; but that, in blatant disregard thereof, the respondents have hindered them from accessing the property by hiring goons who attacked and assaulted them.

[3] The applicants relied on the affidavit of Esther Jeptanui Kiptoo,(the 1st applicant) sworn on 1 March 2021, in which she averred that the Order of 3 February 2021 was extracted and served on the respondents; and that on 22 February 2021,when they visited the property to plough it in readiness for the planting season, they were assaulted by hirelings of the respondents, who also robbed them of property including their mobile phones. The 1st applicant further averred that they sustained injuries for which they were rushed to Moiben Hospital; and later to Moi Teaching and Referral Hospital for treatment. The incident was reported to Moiben Police Station and they were issued with P3 Forms for further police action. To augment her averments, the 1st applicant annexed to her affidavit copies of the Court Order dated 3 February 2021which was issued on 19 February 2021; an Affidavit of Service sworn by Sego Kipchirchir Abrahamon 22 February 2021; copies of P3 Forms issued on 22 February 2021by Moiben Police Station as well as photographs taken on 22 February 2021 in proof of the alleged assault.

[4]The respondents opposed the application. They relied on the affidavit of the 1st respondent, sworn on 22 March 2021. Their contention was that the application is founded on falsehoods and misrepresentations, and therefore does not meet the requisite threshold for contempt proceedings. She denied having disobeyed the orders of the Court, either directly or through agents or servants. She averred that she ploughed the portion of parcel No. Moiben/Moiben Block 5(Merewet)228 as she had always done and proceeded to plant it on 7 March 2021. She further denied any connection with the goons referred to by the applicants. Thus, on behalf of the 2nd respondent, the 1st respondent discounted the allegations of assault/robbery and proceeded to impugn the veracity of the documents annexed to the applicants’ Supporting Affidavit.

[5] In their rejoinder, by way of a Further Affidavit filed on 7 April 2021, the applicants refuted the respondent’s averments and re-asserted that they were attacked and robbed by persons who included the 1st respondent’s son; and that the culprits have since been charged and arraigned before the Chief Magistrate’s Court in Eldoret in connection with the incident. She exhibited a copy of the Charge Sheet as Annexure EJK 2 to the Further Affidavit. She further averred that the 1st respondent expressly admitted, at paragraphs 10, 11 and 12 of her Replying Affidavit that she had disobeyed the order of the Court; and is therefore in contempt thereof. She accordingly sought that they be punished accordingly, on the basis of that admission.

[6] The application was canvassed by way of written submissions. In her written submissions dated 7 April 2021, Ms. Tum urged the Court to find that the applicants have demonstrated a case to warrant the citing of the respondents for contempt of court; and that in particular, they have proved that the terms of the order dated 3 February 2021 were clear; and that the order contained a penal notice as by law required. She further pointed out that the said Order was served and an Affidavit of Service filed herein on 25 February 2021 in proof of service. On whether there was breach, counsel referred the Court to paragraphs 11 and 12 of the 1st respondent’s affidavit in addition to the applicants’ averments and annexures, and urged the Court to find ample proof therein of disobedience. She relied on Teachers Service Commission vs. Kenya National Union of Teachers & 2 Others [2013] eKLR to underscore the importance of obedience of court orders.

[7] Mr. Kenei, learned counsel for the respondents, relied on his written submissions dated 15 April 2021. He proposed the following issues for determination on the authority of Cecil Miller vs. Jackson Njeru & Another [2017] eKLR:

[a] Whether the terms of the order were clear, unambiguous and binding on the respondents;

[b] Whether the respondents had knowledge of or proper notice of the terms of the order;

[c]Whether the respondents have acted in breach of the terms of the order; and,

[d] Whether the respondents’ conduct was deliberate.

[8] It was the submission of Mr. Kenei that, whereas the respondents were of the view that the Court Order is clear and unambiguous, the applicants seem to have assigned a second and conflicting interpretation to it. He pointed out that whereas the understanding on the part of the respondents is that the Court Order did not bar them from using their portion of the piece of land No. Moiben/Moiben Block 5(Merewet)228, the applicants seem to be of the understanding that the respondents were not at all allowed to plough or plant their portion of the subject land. Counsel submitted therefore that, in the circumstances, it would be unjust and unfair to punish the respondents for ploughing and planting their portion that they have all along been using.

[9] On whether the respondents have acted in breach of the Court Order, Mr. Kenei submitted that it was incumbent upon the applicants to demonstrate that the respondents have taken away their 20-acre portion of the suit property from them; which they failed to do. According to counsel, the applicant set out to establish that they were stopped, by goons allegedly hired by the respondents, from entering the land. He urged the Court to find that, since in a previous affidavit, the applicants had asserted that they had the possession and use of the portion measuring 20 acres, it was imperative for the applicants to show how, if at all, they lost possession to explain the alleged obstruction of 22 February 2021. In his view the applicants have failed to explain how they lost possession and use between 5 October 2020 and 22 February 2021. He added that, in those circumstances, it cannot be said that breach has been proved on the part of the respondents.

[10] On the authority of Re Breamblevale Ltd [1969] 3 All ER 1062, Katsuri Limited vs. Kapurchand [2016] eKLR and JGK vs. FWK [2019] eKLR, Mr. Kenei submitted that contempt proceedings are quasi-criminal in nature; and therefore that the standard of proof is akin to the standard applicable to criminal proceedings, namely, beyond reasonable doubt. He impugned the attempt by the applicants to rely on photographs without compliance with the applicable provisions of the Evidence Act, Chapter 80of the Laws of Kenya, on admissibility of such evidence. He relied on Samwel Kazungu Kambi vs. Nelly Hongo & 2 Others [2017] eKLR.

[11] Mr. Kenei further submitted that, in any event, no nexus was established between the photographs and either the applicants or the respondents. He likewise posited that the medical reports annexed to the applicants’ Supporting Affidavit have been doctored to achieve an ulterior motive; granted that the injuries suffered are incompatible with the history given to the Police; particularly that the applicants were attacked and injured using sharp objects. In the same vein, Mr. Kenei submitted that the Charge Sheet annexed to the 1st applicant’s Further Affidavit is of no relevance at all, since neither of the respondents is an accused person in the pending criminal case.

[12] According to Mr. Kenei, it would be superfluous for the Court to consider whether there was a deliberate intention on the part of the respondents to disobey the Court Order; given that the applicants have failed to demonstrate breach. He urged for caution to forestall possible abuse of the coercive powers of the Court for ulterior purposes. To this end, Mr. Kenei relied on De Lange vs. Smuts [1998] ZACC 6; 1998 (3) SA 785 (CC) para 147 where O’Reagan, J. stated that:

“The power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. Clearly it will constitute a breach of s 12 of the Constitution unless both the coercive purposes are valid and the procedures followed are fair. In this case there seems no doubt that the purpose is a legitimate one. It also seems necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness.”

[13]I have carefully considered the application, the pertinent affidavits as well as the written submissions filed herein by learned counsel. The brief background to the application is that the respondents, being aggrieved by the Judgment of the Court dated 8 November 2019, filed an application for stay pending appeal dated 24 September 2020. That application was allowed on 3 February 2021 on condition that the applicants would continue to utilize a portion of Land Parcel No. Moiben/Moiben Block 5 (Merewet)228, measuring 20 acres, without let or hindrance, pending the hearing and determination of the appeal. The applicants now contend that, on 22 February 2021, when they went to plough the land in readiness for the planting season, they were attacked, assaulted and robbed by goons at the behest of the respondents. They now seek the intervention of the Court to ensure, not only that its orders are complied with but also to cite and punish the respondents for contempt of court.

[14] The application was expressed to have been brought under the Constitution of Kenya (Protection of Fundamental Rights and Procedure Rules and the High Court Practice Rules; both of which are inapplicable to the facts hereof. Section 36 of the High Court (Organization and Administration) Act, No. 27 of 2015 by which the Court had jurisdiction to punish for contempt of court, was deleted by dint of Section 39 of the Contempt of Court Act, No. 46 of 2016. The same statute repealed Section 5 of the Judicature Act, Chapter 8 of the Laws of Kenya which, for decades, has been the applicable law in this sphere.

[15] The Contempt of Court Act,having been declared invalid on 9 November 2018for lack of public participation pursuant to Articles 10 and 118(b) of the Constitution inKenya Human Rights Commission vs. Attorney General & Another [2018] eKLR,the applicable law in this regard remains that which obtained prior to the passing of theContempt of Court Act;as imported bySection 5of theJudicature Act, Chapter 8of theLaws of Kenya.That provision states thus:

"(1) 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 such power shall extend to upholding the authority and dignity of the subordinate courts.

(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court."

[16] Needless to say therefore that the obligation to obey court orders is unqualified. Thus, in Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another[2005] KLR 828, the Hon. Ibrahim, J. (as he then was) aptly stated thus:

"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. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void."

[17] In the premises, the elements that the applicants herein needed to prove are:

[a] that the Order of 3 February 2021 was clear, unambiguous and binding on the respondent;

[b] that the respondents had proper notice or knowledge of the terms of that Order;

[c] that the Petitioners have deliberately failed to obey the terms of the Order;

(see Katsuri Limited vs. Kapurchand Depar Shah[2016] eKLR)

[18] Although it was the submission of Mr. Kenei,on the authority of, inter alia, Re Breamblevale Ltd (supra), that the applicable standard of proof is similar to the standard of proof in criminal matters, which is beyond reasonable doubt, the Court of Appeal pronounced itself on the issue thus, in Mutitika vs Baharini Farm Ltd [1985] eKLR:

“In, Re Breamblevale Ltd[1969] 3 All ER 1062, Lord Denning MR. (as he then was), at page 1063, had this to say,

“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt”.

With the greatest possible respect to that eminent English judge, that proof is much too high for an offence “of a criminal character” and, ipso facto, not a criminal offence properly so defined...

…In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi-criminal in nature…"

[19]With the foregoing in mind, I have carefully considered the averments set out in the respective affidavits of the parties with a view of determining whether the four elements afore-mentioned have been proved to the requisite standard. First and foremost, there is no dispute that the order of 3 February 2021 was extracted and signed by the Deputy Registrar of this Court on 19 February 2021 for purposes of service on the respondent. The order has, appended to it, a penal notice indicating that:

“This is a valid Court Order and anybody disobeying this order will be cited for contempt and will be committed to civil jail for a period not exceeding six (6) months.”

[20] There is further no dispute that the Order was served on the respondents. An Affidavit of Service sworn by Sego Kipchirchir Abraham on 22 February 2021 was duly filed herein on 25 February 2021. A copy thereof was also annexed to the 1st applicant’s Supporting Affidavit. It confirms that the Order was duly served on the 1st respondent on 19 February 2021. Indeed, nowhere in the 1st respondent’s Replying Affidavit has service been disputed. To the contrary she merely averred, at paragraph 6 thereof that:

“…we have never disobeyed the Court Order given on 3rd February, 2021 either directly or through agents or servants…”

[21]Looking at that Order, there can be no ambiguity evinced thereby, for it states in plain language that:

“(a) There be a stay of execution of the Judgment delivered on 8th November, 2019 and any further proceedings in this matter pending hearing and determination of the intended appeal.

(b) The Respondents shall continue utilizing the portion of Land Parcel No. MOIBEN/MOIBEN BLOCK 5(MEREWET)228 measuring 20 acres without let or hindrance pending the hearing and determination of the appeal.

(c) Costs of the application be borne by the estate.”

[22] There is no indication in the 1st respondent’s Replying Affidavit to suggest that she had any difficulty interpreting the Order for purposes of compliance. Indeed, counsel conceded on behalf of the respondents, at paragraph 5 of his written submissions, that:

“…until the filing of the instant Motion, the Petitioners/Respondents were of the view that the Court Order is clear and unambiguous…”

[23] The instant Motion was filed on 8 March 2021 in respect of an alleged breach that occurred on 22 February 2021. It is plain then that at all times material to the instant application, the respondents were in no doubt as to what the Court Order issued on 19 February 2021 required of them; and I so find.

[24]As to whether the order was disobeyed by the respondent, the applicants’ complaint is captured at paragraphs 4-9 of the Supporting Affidavit thus:

“4. THAT we visited the said portion measuring Twenty (20) acres in Parcel Number MOIBEN/MOIBEN BLOCK 5(MEREWET)228 on 22nd February, 2021 with my casual workers and other relatives to plough in preparation for planting season.

5. THAT upon arriving on the said parcel, a group of hired goons all armed with pangas and crude weapons descended on us and attacked us mercilessly while threatening to kill (Attached and marked E.J.K.3 are copies of photographs of the hired goons).

6. THAT the said goons also robbed us our valuables including our phones.

7. THAT we sustained various injuries and were rushed to the Moiben Hospital and later referred to Moi Teaching and Referral Hospital for further treatment (Attached and marked E.J.K.4 are copies of photographs after treatment).

8. THAT I was treated together with other people who had sustained injuries and issued with P3 forms (Attached and marked E.J.K. 5a, b, c are copies of P3 forms issued).

9. THAT I reported the incident at Moiben Police Station where several goons have been arrested and are awaiting to be arraigned in court…”

[25] Other than the assertion that the goons were hired, there is no indication in the aforestated paragraphs to demonstrate, let alone even suggest, that the goons were hired by the respondents. Hence, in her Further Affidavit, the 1st applicant urged the Court to treat as admissions, the contents of paragraphs 11 and 12 of the 1st respondent’s affidavit. She went ahead and annexed a copy of that affidavit to her Further Affidavit. In the premises, the question to pose is whether indeed the respondents have admitted that they acted in contempt of the Order issued herein on 19 February 2021.

[26] At paragraph 11 of the 1st respondent’s affidavit, she averred thus:

“11. THAT I ploughed the portion of land parcel number Moiben / Moiben Block 5(Merewet)228 that I have always used in January, 2021 as we have always done in view of the planting cycle within Uasin Gishu County. (Annexed and marked as ‘ECK 1(a) and (b) are a copy of the letter from the Area chief and photograph of the Ploughed parcel of land)

12. THAT I proceeded to plant my maize on the above-mentioned parcel of land on 7th March, 2021 when the signs of the rain showed and this was before the instant application was filed in this Honourable Court.”

[27] The Court having found that the property known as Moiben/Moiben Block 5(Merewet)228measures about 50 acres in total, and that the applicants had hitherto been utilizing 20 acres thereof, leaving the remainder to the respondents, the foregoing can hardly be said to be an admission of breach. It needed to be demonstrated, on a preponderance of evidence, that the respondents had encroached onto the 20-acre portion that the applicants have hitherto been cultivating. This critical component was not brought out clearly; granted that the Order of 3 February 2021 did not bar the respondents from utilizing their portion of the said property. Moreover, no attempt whatsoever was made by the applicants to connect the so called hired goons with the two respondents. As matters stand, neither the 1st respondent nor the 2nd respondent in the pending criminal case whose Charge Sheet was exhibited as an annexure to the 1st applicant’s Further Affidavit.

[28]And, as correctly pointed out by Mr. Kenei, the photographs relied on by the applicants are of little help in terms of identification of the persons photographed; such that the Court is not in a position to tell, as a matter of fact, whose images appear on Annexures E.J.K 3 or E.J.K. 4. More importantly, it was imperative for the applicants to show, not only that the alleged robbery and assault was done at the instance of the respondents, but also in the process of preventing them from utilizing their 20-acre portion of the suit property. This vital link having not been proved to the requisite standard, I am unable to find that the respondents acted in blatant breach of the Court Order dated 3 February 2021, which was issued on 19 February 2021.

[29] My finding then is that the application dated 1 March 2021 lacks merit and is hereby dismissed with an order that the costs thereof be in the cause. Nevertheless, it is hereby reiterated, for the avoidance of doubt, that the subject Court Order still stands and is enforceable against the two respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JUNE 2021

OLGA SEWE

JUDGE