[2024] KEELC 6677 (KLR)

Lapana Limited v County Government of Trans-Nzoia (Environment & Land Case 8 of 2023) [2024] KEELC 6677 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6677 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 8 of 2023

FO Nyagaka, J

October 3, 2024

Between

Lapana Limited

Plaintiff

and

The County Government of Trans-Nzoia

Defendant

Ruling

On Sentencing, arising from a Conviction on Contempt of Court 1. At the outset, it is important to remind the parties herein that the duty of anyone to whom court orders are directed to obey them is a clear one. It is not open for anyone to do with such orders as he pleases: his obligation is to obey them to the extent that they have not been varied. Otherwise, he must approach the court to vary or set them aside. The Court of Appeal, in Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR held as follows:“When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities”.

2. One of the preliminary ways of enforcing disobedience of court orders is to deny audience to a party who is in contempt until he/she purges it. Numerous authorities take that position that once a party is in breach, violation or disobedience of court orders he should not purport to move the same court he is demeaning in any other manner since he does not have regard to it anyway. He has to respect the authority and therefore obey the orders of the court first for him to be heard. A party’s duty to submit to the authority of the Court is not, should not and can never be negotiable. In essence disobedience soils the hands of the contemnor to the utmost.

3. In Hadkinson Vs. Hadkinson [1952] 2 ALL ER 562, the English Court of Appeal returned these categorical holdings;“Held (per Somervell and Romer, L.JJ.), that it was the unqualified obligation of every person against, or in respect of whom, an order had been made by a court of competent jurisdiction, to obey it unless and until that order was discharged; that the mother in the present case had not brought herself within any of the exceptions to the general rule which debarred a person in contempt from being heard by the courts whose order he had disobeyed; and that she being in continuing contempt by retaining the infant out of the jurisdiction her appeal could not be heard until she had taken the first and essential step towards purging her contempt by returning the child within the jurisdiction.Held Per Denning L.J,.: The fact that a party to a cause had disobeyed an order of the court was not of itself a bar to his being heard, but if his disobedience was such that, so long as it continued, it impeded the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it might make, then the court might in its discretion refuse to hear him until the impediment was removed. The present case was a good example of a case where the disobedience of the party impeded the course of justice.”

4. This court rendered its determination on 18/01/2024 in which it found the County Secretary of the County Government of Trans Nzoia in contempt of Court. The history and background of ruling was summarized well in the Ruling. Thus, this Court needs not rehash it. After that the contemnor applied to set aside the finding of the Court. This Court dismissed the Application on 23/02/2024. What is left of this court to do is the sentencing arising from the court’s earlier finding of contempt against the contemnor.

5. Contempt of court is no undoubtedly one of the clearest acts of aggression towards judicial authority and the rule of law. It not only demeans the dignity of the court but signals the rest of the citizenry to resolve to disobedience of similar orders and the law in general, lose faith in courts and take the law into their hands. One thing is clear: of the three arms of government the Court is the most impartial. It is the one central to the proper functioning of the state because, whereas the Executive is the one that has the purse and often muscles power through both the purse and execution, and Parliament exercises its oversight on the Executive besides making laws, both arms operate and have been seen world over throughout generations to always lean towards certain political interests. How I wish this was not the case!

6. Nevertheless, courts do not and are never expected to have any inclinations or interests to serve than upholding the rule of law and justice for all persons, natural or juristic, irrespective of which political leanings or other inclinations they have. Ours as the judiciary is to be as faithful to the law and our calling as Caesar’s wife. Actually more. It is a divine call to serve justly and faithfully as the just Judge of the universe expects of us, unlike the elected (political) representatives of the people who must serve certain interests. The latter is more imperative and obligatory than measurements pegged on human standards of behavior: even Caesar’s wife may have had natural temptations and was overcome by one or two in one way or other.

7. Having said that, this Court found that the Defendant no doubt conducted itself in a most despicable manner yet it was the one upon whom the residents, including the Applicant, of this County put trust in by electing it into office. The Defendant was not elected to destroy but protect both the property of its residents and the rule of law. They have clearly shown that they have no respect for the rule of law.

8. In the case of Miguna Miguna v Fred Matiang’i,Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 8 others [2018] eKLR, G. V. Odunga J. (as he then was) stated:-“In deciding what sanction to mete this Court must reflect on the need to maintain the rule of law and to ensure that the authority and the dignity of our Courts are upheld at all times and to stamp the Court’s authority and uphold the values and principles of governance enshrined in Article 10 of the Constitution. In this case the 1st to 3rd Respondents have not adhered to the oath of office which they took to inter alia protect the Constitution of this country including the national values and principles of governance. To the contrary the manner in they have conducted themselves in these proceedings does not inspire confidence at all. This is contrary to Article 74 of the Constitution which provides that a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that inter alia avoids demeaning the office the officer holds. The provision proceeds to state that such an officer may, in accordance with the disciplinary procedure be dismissed or otherwise removed from office and where the officer is so removed, he or she is thereby disqualified from holding any public office.”“This Court, like any other Court of law, ought not to make orders in vain. It must make sure that its orders “bite” as Kimaru, J said. It must not only make effective orders but orders whose execution can be carried out swiftly and efficiently and orders which it can supervise. It must not issue orders which from the circumstances of the case, there is high likelihood that they will not be implemented whether rightly or not.”

9. This Court was urged by the Plaintiff/Applicant to mete out the most serious sentence. But it was urged on behalf of the Defendant that the contemnor could not have been in a position to comply with the orders of the court for the reason that service was unclear. Further, she could not have disobeyed the orders if the service was clear. That it was the first time she was appearing for mitigation due to disobedience. She was a law-abiding citizen and the Defendant was a law-abiding institution which had been keen on obeying court orders. It had undertaken to obey further orders of the court. It prayed for leniency and gave a firm and unequivocal commitment to work within the limits of the law so as not to be seen in any way to frustrate the decisions of the courts. It prayed for a warning as the sentence to give rather than fine or custodial sentence.

10. On his part, the Plaintiff submitted that the property destroyed was worth Kshs. 6,850,000/=, and it was done for no good reason because the court had made an order whose service had been done. They submitted that this was not the first time the contemnor was mitigating because there was another matter. He submitted further that without the court sending a strong message against disobedience of court orders, it would destroy society. That was why a serious sentence ought to be meted out. Further, the Defendants had not made any steps to purge the contempt by way of even tendering an apology. Therefore, there was no remorse.

11. They submitted that the punishment for disobedience of court orders under the Environmental Land Act was a fine of twenty (20) million or imprisonment for a term of two years. They submitted that this Court metes out a stiff sentence to stop the madness of destroying properties of citizens. They asked the court to balance the interests of the helpless applicants whose property was destroyed and who were not getting anything from the property anymore.

12. On its part, the Defendant stated that it was a stranger to the evaluation the Plaintiff gave for the value of the property to the sum stated above. It prayed that the court does guide the contemnor on how to approach the Plaintiff for an apology. It submitted that the contemnor was willing to purge the contempt. Further, the matter was not personal as the demolition was not undertaken by the contemnor herself. It urged that orders of the court should not be weaponized in sending messages to people. It emphasized that it was the first time the contemnor was appearing before the Court for mitigation and sentencing and prayed for forgiveness. It asked the court not to rely on the authority cited. It pleaded for leniency.

13. One of the reasons this prayer was made was that the Plaintiff had lost its property in the circumstances of the actions of the contemnor. Indeed, it is not in dispute that following the perceived threats of the Defendants over the said property the Applicant moved this Court under certificate to urgency for orders which, if issued, were to preserve the property in issue pending the hearing and determination of this suit. The Court issued orders whose details were given on 27/02/2023. By the said date the suit property was intact. Thereafter, the same was destroyed during the pendency of the orders. What that means was that that which the Plaintiff called his source of income was lost. Only the ground remains and not in use. And it is the one now ownership is the subject of determination by this.

14. Granted that the property belonged to the Plaintiff, he would have lost income for all the time this suit remains undetermined and afterwards, and the value of putting up one of a similar size and quality. If the property is ultimately found to belong to the Defendant the Plaintiff would have lost nothing but the cost of the structure that was destroyed, and perhaps rental income. However, that loss would still be of his own making since he was not supposed to have put it on the parcel of land in the first place. He would be a trespasser on public property: one who is supposed to compensate the public for the use and occupation of the property for all the years he put up the structure on it and further compensate the public for denial of use of the land for the purpose it intended until when it repossessed it. Balancing the interests of both parties and applying the prayer sought, it is a double-edged sword which the Plaintiff ought to be aware of as holding. Also, if the land is ultimately found to be public at the end of the case he could be called upon to remove the structure and any attendant material from the suit property at his own cost and either restore, still at his cost, the land to where it was originally or compensate the government for cost of both removal of the unwanted structure and materials and restoration of the land. These are some of the additional considerations this court has made, in arriving at the appropriate sentence.

15. Weighing the issues above, I have considered the mitigation of the contemnor. I am of the view that an order of restoration of the property would not be appropriate in the circumstances because, as I have stated above, should it be found in the end that the same was built on the Defendant’s land it would have to be destroyed again. And should it be found to have been for the Plaintiff, since he has estimated the value of the destroyed property and the character thereof has changed, he has the liberty to amend his pleadings to seek a relief for compensation and damages or loss of use, as may be appropriate. This does not mean in any way that in future if the Defendant disobeys the court order by destroying anyone’s property this is the way to go. The Defendant has only escaped an order directing it to deposit the entire sum of the value of the destroyed property in a joint fixed account or court pending the trial because it was not prayed for in the submissions.

16. For this reason, the court fines the contemnor a sum of Kshs. 100,000/=, in default the contemnor be arrested by the OCS Kitale Police Station and incarcerated for a period of one (1) month from the date of arrest. The fine shall be paid within seven (7) days. Meanwhile the contemnor is given a personal bond of Kshs. 200, 000/= to be executed immediately in order for her to be free to facilitate the processing of the of the fine.

17. Mention on 15/10/2024 at 08:30 AM to confirm compliance of payment of the fine or arrest and imprisonment, in default.

18. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT KITALE IN OPEN COURT THIS 3RD DAY OF OCTOBER, 2024. HON. DR. IURF. NYAGAKA,JUDGE, ELC KITALEIn the presence of:Kiarie Advocate-------------------------for the PlaintiffWaswa Advocate-------------------for the Defendant