https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3432

Matoke v Oribu (Environment and Land Case 186 of 2016) [2026] KEELC 3432 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3432 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case 186 of 2016 AA Omollo, J June 4, 2026 Between Douglas Oribu Matoke Plaintiff and William Sagin Oribu Defendant Ruling 1.The Plaintiff/Applicant has filed the application dated 6th December, 2025, seeking an order that the defendant be cited for contempt of Court of Appeal orders dated 20th September, 2023, and that the said defendant be committed to civil jail for a period not exceeding 6 months. He also seeks to be awarded costs of the application. 2.The application is premised on four grounds set out on its face, including that there is a valid court order maintaining the status quo of the suit property until the appeal is heard and determined in the Court of Appeal at Kisumu, vide COCA No. 180 of 2021, and that the Defendant has defied the court order. 3.In the supporting affidavit, the Applicant deposes that his suit was dismissed on 29th July, 2021, an order that necessitated the filing of the appeal to the Court of Appeal. He also applied to that court for an order to preserve the suit property, which was the structure standing on the suit property. He alleges that on 28th October, 2025, the Respondent and/or his agents knocked down a portion of the impugned structure, as shown in the photos annexed as SMO 4. It is this action that led to the filing of the present application. 4.The application is opposed by the Defendant in his reply affidavit, sworn on 20th November, 2025. He denies having been served with the order he is accused of disobeying. He denies undertaking any new development on the suit premises and asserts that the Applicant has not disclosed the nature of the violation. 5.The Respondent avers that the Applicant has not stated the status of the appeal before the Court of Appeal. He further avers that, since the order was issued by the Court of Appeal, the Applicant ought to have made this application before that court. 6.The parties filed their respective brief submissions, which I have read and considered. The Applicant argues that section 4 of the Appellate Jurisdiction Act CAP 9 mandates this Court to execute the orders of the Court of Appeal, such as the order in issue in this application. It provides as follows;“Any judgment of the Court of Appeal given in exercise of its jurisdiction under this Act may be executed and enforced as if it were a judgment of the High Court.” 7.The provisions of section 4 of Cap 9 relied upon by the Applicant clearly refer to the execution of judgments, not the prosecution of an application for contempt. Therefore, it does not justify filing the application before this court, a point taken by the Respondent, who argues that the application ought to have been filed before the Court of Appeal, which issued the impugned orders. 8.Thus, the first question I have to determine is whether the Court of Appeal has the power to punish contempt of its orders, or whether such applications have to be made in the court whose order or decree is being appealed. 9.Section 5 of the Judicature Act, CAP. 8, formed the legal basis for proceedings for contempt. According to this provision, the law to be applied is that applied in England, and a committal order can only be appealed against as if it were a criminal conviction. The section reads as follows:“Contempt of court1.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 subordinate courts.” 10.Section 5 was repealed under section 38 of the Contempt of Court Act CAP 8F. The Contempt of Court Act provides for jurisdiction of the Courts to punish for contempt under its section 5, which states that;“Every superior court shall have power to—(a)punish for contempt of court on the face of the court;(b)punish for contempt of court; and(c)uphold the dignity and authority of subordinate courts.” 11.In the case of Kiru Tea Factory Limited versus Stephen Maina Gathiga & 14 Others (2019) KECA 923(KLR), the Court of Appeal dealt with the issue of the governing law after the Contempt of Court Act was declared unconstitutional for lack of public participation. They stated as follows;“16.In this matter, it has been urged that the Contempt of Court Act has been declared unconstitutional and Section 5 of the Judicature Act has been deleted by the Contempt of Court Act; this Court has no legal framework to punish for contempt in this matter.17.We wish to dispose of this argument at this stage. By Section 38, Section 5 of the Judicature Act was repealed by deleting it. Similarly, Sections 39 and 40 of the Contempt of Court Act repealed by deleting Sections 36 and 35 of the High Court (Organization and Administration) Act and the Court of Appeal (Organization and Administration) Act, respectively. It must be stressed that once an Act has been declared unconstitutional, it is void ab initio as if it had never been enacted. Consequently, the Contempt of Court Act having been declared unconstitutional, it follows that anything done under or pursuant to it is a nullity and for that reason Section 5 of the Judicature Act, section 36 of the High Court (Organization and Administration) Act as well as section 35 of the Court of Appeal (Organization and Administration) Act were never deleted and remain in force as the legal framework for this Court to punish for contempt. (See Supreme Court decision in Mary Wambui Munene - v - Peter Gichuki King’ara & 2 others [2014] eKLR).”18.Section 35(1) of the Court of Appeal (Organization and Administration) Act, which was the applicable law at the time the alleged contempt was committed, provides in pertinent part that;“35. (1)Subject to the provisions of any other law, the Court. Court shall have power to punish for contempt.(2)A person who, in the face of the Court —(a).......(b)........or(c)without lawful excuse disobeys an order or direction of the Court in the course of the hearing of a proceeding, commits an offence”. 12.Statute law makes it clear that the Court of Appeal has jurisdiction to punish disobedience of its orders. The Applicant affirmed that the order alleged to have been disobeyed was issued by the Court of Appeal, and the annexed copy of the order confirms this. Accordingly, this court's jurisdiction is improperly invoked; hence, I cannot proceed to determine the application on its merits. 13.The consequence thereof is that the application dated 6th November, 2025, is struck out for want of jurisdiction to entertain it. Each party to bear their costs of the application. DATED, SIGNED AND DELIVERED AT KISII THIS 4TH DAY OF JUNE, 2026.A. OMOLLOJUDGE2