https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4235

Lukio & 2 others (Suing as the registered trustees of the Luo Council of Elders) v County Government of Kisumu & 5 others (Environment and Land Case E029 of 2023) [2026] KEELC 4235 (KLR) (9 July 2026) (Sentence) Neutral citation: [2026] KEELC 4235 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E029 of 2023 EK Wabwoto, J July 9, 2026 Between Calvin Ariko Lukio 1st Plaintiff Lawi Raburu Javan 2nd Plaintiff Jane Akinyi Jacob Midialo 3rd Plaintiff Suing as the registered trustees of the Luo Council of Elders and County Government Of Kisumu 1st Defendant The City Manager, County Government Of Kisumu 2nd Defendant and Prof. Peter Anyang’ Nyong’o 1st Alleged Contemnor Mathew Ochieng’ Owili 2nd Alleged Contemnor Judith Oluoch 3rd Alleged Contemnor Abala Wanga 4th Alleged Contemnor Sentence 1.This ruling is on the sentence to be meted out on the Contemnor, Mr. Abala Wanga, the City Manager, County Government of Kisumu, following his conviction for contempt of court vide the ruling of Justice S. Okong’o (as he then was) delivered on 18th July 2024. 2.A brief background is necessary to place the sentence in context. The Plaintiffs instituted this suit by way of a plaint dated 14th December 2023 together with a Notice of Motion application of even date. Upon certification of the application as urgent on 15th December 2023, Justice Asati issued an interim order of injunction restraining the Defendants whether by themselves, their servants, agents or anyone acting for or through them from repossessing, taking over, handing over, demolishing, evicting tenants, threatening or in any manner interfering with the Plaintiffs’ ownership, quiet possession and use of all that parcel of land known as Kisumu Municipality/Block 5/25 (“the suit property”) or any developments thereon. 3.Notwithstanding service of the said order upon the Defendants on 15th December 2023, a demolition and eviction exercise was carried out on the suit property on 19th December 2023 in which structures erected thereon by the Plaintiffs’ tenants were demolished and the said tenants evicted, following which the Defendants took over control of the suit property. This precipitated the Plaintiffs’ contempt application dated 18th January 2024. 4.In its ruling delivered on 18th July 2024, the court found that the 1st and 2nd Defendants had disobeyed the court order of 15th December 2023 and found the 4th alleged contemnor, Mr. Abala Wanga, who led the eviction and demolition team and whose office was sued as the 2nd Defendant, to be in contempt of court. The court directed the Contemnor to appear before the court to address it in mitigation before sentence. The court further ordered that possession and control of the suit property shall be as it was on 15th December 2023 pending the hearing of the Plaintiffs’ application dated 14th December 2023, and awarded the Plaintiffs the costs of the contempt application. 5.The matter came up before me on 8th July 2026 for mitigation. The Contemnor was present in court and addressed the court on oath. Learned counsel Mr. Ochieng appeared for the Plaintiffs while learned counsel Mr. Onsongo appeared for the Contemnor. The Contemnor’s Mitigation 6.In his address to the court, the Contemnor stated that he has served as the City Manager of Kisumu City for about four and a half years and that his duties entail waste management, regulation and planning within the city. He stated that his involvement in the matter arose from his administrative mandate over approvals and land rates. He told the court that the County maintains a database used to calculate rates, that the County only deals with the question of whether rates have been paid and could not determine the true ownership of the suit property, and that rates arrears on the suit property stood at approximately Kshs. 18,000,000 which remain unpaid to date. 7.The Contemnor stated that there were illegal structures on the suit property which had become a security risk and that he had to take measures to restore order and enhance security. He stated that he had no reason to harm anyone, that his administrative duties called for action, that he did not evict the tenants, that he was not the owner of the building and that he did not touch anything to do with the main building. He drew a biblical analogy, likening his actions to the clearing of the temple. He informed the court that mediation had been ongoing in the matter and that the County had used its own funds to replace the facilities and had offered to compute the inconvenience caused as a demonstration of good faith, but that the mediation later stalled when the chairperson walked out. He stated that the persons whose structures were removed had been given an alternative place, save for one church. He concluded by pleading with the court to pardon him for the contempt and by seeking leniency. The Plaintiffs’ response 8.Mr. Ochieng, learned counsel for the Plaintiffs, submitted that there was a court order which had stopped the Contemnor from doing anything on the suit premises and that parties should not choose which court orders to obey and which ones to disobey. Counsel submitted that the only way the Contemnor could purge the contempt was by allowing the Plaintiffs to go back to the suit premises. On the question of mediation, counsel submitted that no mediation or negotiation had borne any fruit and that in any event the same was not court-sanctioned. Counsel urged the court to “bite” in vindication of its own authority, and submitted that anything short of allowing the Plaintiffs back onto the suit premises would amount to aiding the contempt. Submissions by Counsel for the Contemnor 9.Mr. Onsongo, learned counsel for the Contemnor, submitted that the main building on the suit property is still standing and that some of the roles complained of were not within the mandate of the Contemnor, who could not decide who the bona fide owner of the suit property was. Counsel submitted that the persons who were evicted had been given alternative places and that it was one of the parties who scuttled the mediation. Counsel submitted that the Contemnor is remorseful and urged the court to impose a fair non-custodial sentence and a fair fine, or in the alternative that the Contemnor be warned and discharged. Analysis and Determination 10.The power of this court to punish for contempt is anchored in Section 5 of the Judicature Act, Chapter 8 Laws of Kenya, which confers upon the High Court, and by extension courts of equal status, the power to punish for contempt of court. This court, being of the same status as the High Court by dint of Article 162(2) of the Constitution and Section 4 of the Environment and Land Court Act, 2011, is possessed of similar powers. In addition, Section 29 of the Environment and Land Court Act provides that any person who refuses, fails or neglects to obey an order or direction of the court given under the 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. 11.The object of punishment for contempt of court is not to vindicate the personal dignity of the judge but to safeguard the authority of the court and the administration of justice, upon which the rule of law rests. Punishment for contempt serves a dual purpose: it is both punitive, to signal the court’s displeasure at the disobedience of its orders, and coercive, to compel compliance with the orders disobeyed. The available sanctions include committal to civil jail, a fine, sequestration of assets, or such other orders as may be appropriate in the circumstances. 12.In sentencing a contemnor, the court exercises a wide discretion which must nonetheless be exercised judiciously. The factors that guide the court include: the gravity and nature of the contempt; whether the disobedience was deliberate and contumacious; the position and standing of the contemnor, and in particular whether the contemnor is a public officer expected to exemplify obedience to the law; whether the contempt has been purged or the contemnor has taken steps towards compliance; the remorse, if any, exhibited by the contemnor; whether the contemnor is a first offender; and the need to ensure that the sanction imposed is proportionate while sufficing to vindicate the authority of the court. Committal to civil jail is a sanction of last resort, to be imposed sparingly and only where the circumstances demonstrate such contumacious defiance that no other sanction would suffice. 13.I have carefully considered the mitigation by the Contemnor, the submissions by learned counsel for the Plaintiffs and for the Contemnor, the ruling of this court delivered on 18th July 2024 and the entire record. The sole issue for determination is the appropriate sentence to be imposed on the Contemnor. 14.At the outset, it bears emphasizing that the mitigation stage is not an occasion to reopen or relitigate the finding of contempt. The court has already found, on the requisite standard of proof, that the order of 15th December 2023 was disobeyed and that the Contemnor bore the fullest responsibility for that disobedience. To the extent that the Contemnor in his mitigation sought to explain that he did not evict the tenants, that he did not touch the main building and that he acted in discharge of his administrative mandate, those assertions cannot displace the finding already made and stand only to be weighed in assessing the depth of his remorse. 15.There are several aggravating features in this matter. First, the Contemnor is a senior public officer in the service of a County Government. Public officers, above all others, are expected to exemplify fidelity to the law and to court orders, for the rule of law would be an empty promise if those entrusted with public power were at liberty to disregard the orders of the courts. Secondly, the disobedience was flagrant and swift: the demolition and eviction exercise was carried out a mere four days after the order had been issued and served. Thirdly, the justifications proffered by the Contemnor the rates arrears said to stand at approximately Kshs. 18,000,000, the alleged illegality of the structures and the alleged security risk whatever their merit, were matters to be placed before the court in the pending proceedings and could never constitute a licence for self-help in the face of a subsisting court order. As the court observed in Wildlife Lodges Ltd v County Council of Narok and Another [2005] 2 EA 344, parties should not take it upon themselves to decide which court orders are to be obeyed and which ones overlooked. The biblical analogy invoked by the Contemnor, with respect, misses the point: however noble a party may consider his cause, the route to vindication lies through the court and not around it. 16.Fourthly, and of significant concern to this court, is the question of purging of the contempt. In the ruling of 18th July 2024, the court ordered that possession and control of the suit property shall be as it was on 15th December 2023. From the address of learned counsel for the Plaintiffs, the Plaintiffs are yet to be restored to the suit premises, close to two years after that order was made. A contemnor who approaches the court for leniency ordinarily does so having purged, or having demonstrably endeavoured to purge, his contempt. The continued non-restoration of the status quo ante considerably dilutes the plea for leniency. 17.On the other hand, there are mitigating factors that weigh in the Contemnor’s favour. The Contemnor appeared in person before the court, took the oath and addressed the court, and expressly pleaded with the court to pardon him for the contempt. This is his first citation for contempt before this court. There is evidence of some ameliorative steps: the persons whose structures were removed are said to have been provided with an alternative place, save for one church; the County is said to have applied its own funds towards replacing the facilities; and the parties made an attempt, albeit an unsuccessful and non-court-sanctioned one, at mediation. The main building, Ofafa Memorial Hall, remains standing. These factors, while not purging the contempt, evince a measure of contrition and an attempt at making amends. 18.Weighing the aggravating and the mitigating factors, I have considered whether a custodial sentence is merited. Committal to civil jail being a sanction of last resort, and taking into account the Contemnor’s expression of remorse, his status as a first offender and the ameliorative steps taken, I am not persuaded that the circumstances of this case call for an immediate custodial sentence. I am equally not persuaded, however, that a mere warning and discharge as urged by learned counsel for the Contemnor would suffice. Such an outcome would trivialize the flagrant disobedience of a court order by a senior public officer and would send entirely the wrong signal that court orders may be disobeyed with impunity. In my considered view, a monetary penalty, to be borne by the Contemnor coupled with firm compliance directions, will meet the twin punitive and coercive objects of sentencing for contempt. 19.It must also be made clear that the punishment for the contempt does not absolve the Contemnor and the Defendants of the obligation to comply with the subsisting orders of this court. The order made on 18th July 2024 on the restoration of possession and control of the suit property to the position obtaining on 15th December 2023 remains in force and must be obeyed. Disposition 20.In the end, and having considered the mitigation and the rival submissions of counsel, I make the following orders: –i.The Contemnor, Mr. Abala Wanga, is hereby sentenced to pay a fine of Kshs. Ksh 500,000/= within thirty (30) days of the date of this ruling, and in default thereof the Contemnor shall be committed to civil jail for a period of thirty (30) days.ii.The Contemnor is hereby sternly warned that any further disobedience of the orders of this court shall attract far more severe consequences, including committal to civil jail.iii.The Plaintiffs shall have the costs of the sentencing proceedings. DATED, SIGNED AND DELIVERED VIRTUALLY/OPEN COURT AT KISUMU THIS 9TH DAY OF JULY 2026.E. K. WABWOTOJUDGEIn the presence of: –Mr. Ochieng for the Plaintiffs.Mr. Onsongo for the 4th Respondent/Contemnor.Court Assistant: Joanne Omondi.