https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4969

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. 111 OF 2019** **MICHAEL OGOLLA** **DAVID MANG’ONG’O** **LAWRENCE MIRITI** *(suing as officials of Unimerics Self Help Group)***:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS** **VERSUS** **UNIQUE SACCO LTD:::::::::::::::::::::::::::::::::::::::::::::1ST DEFENDANTS** **NUMERICAL MACHINING COMPLEX LIMITED::::::2ND DEFENDANTS** **RULING** The application is dated 20th July 2023 and is brought under Sections 4, 5, 7 and 28 of the Contempt of Court Act, Order 51 Rules 1, 2 & 3 of the Civil Procedure Rules seeking the following orders: 1. That this Application be certified urgent and service be dispensed with in the First instance. 2. That this Honorable Court Directs that the Current Chairman of the 1st Defendant herein and the Managing Director/ CEO of the 2nd Defendant herein to Appear before it on such a date as the court may direct for the purposes of cross examination on why they should not be punished for being in contempt of the orders of this Honorable court of the 21st day of November 2022. 3. That this Honorable Court does find the 1st Defendant and its Current Chairman and the 2nd Defendant and it's Managing Director/ CEO in Contempt of the Orders of this Honorable Court of the 21st day of November 2022 and Commits them to imprisonment for Six (6) months or such other punishment as the court may deem fit. 4. That this honorable Court grants any other order in the interest of justice. 5. That the costs of this application be provided for. It is based on the annexed affidavit of Michael Ogolla and such other grounds that by a judgment of this Honorable Court delivered on 21st November 2022 a mandatory order was issued compelling the Defendants herein to issue to the Plaintiffs Members Completion documents within Ninety (90) days from the date of the Judgment to enable the Plaintiffs Process their respective Title documents for Plots LR. 26699/25 - 1, 2, 3, 4A, 4B, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69,70, 71, 72, 73, 74 and 75. That the said Judgment was delivered in the presence of advocates for the Plaintiff and advocates on record for the Defendants herein. That since the delivery of the said judgment, the Defendants have failed to comply with the orders of this Honorable court. That pursuant to the Judgment of the Court, the Plaintiffs herein extracted the Decree of this Honorable court on the 11th day of May 2023 and served the aforesaid Decree on the advocates on record for the Defendant's herein on the 19th day of May 2023 together with a letter dated the same day inviting the Defendants to comply with the orders of the Court of 21st November 2022 as the Plaintiffs intended to commence Contempt of Court proceedings against the Defendants. That the Defendants are yet to comply with the orders of this Honorable court of 21st November 2022. That the orders of this Honorable court of the 21st November 2022 have not been vacated or stayed. That the Defendants seems to have taken the orders of this Court lightly and do not seem keen to comply with them hence the need for this court to stamp its authority. That Court orders are not issued in vain and the Defendants herein should not be an exception. That the Defendants are clearly in contempt of the orders of this Honorable Court. This court has considered the application and submissions therein. The Black’s Law Dictionary (Ninth Edition) defines contempt of court as; “*Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment*.” This application is anchored on section 63 (c) of the Civil Procedure Act which provides that; “*63) In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed: -* *(c) Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold*” Pursuant to section 63(c) aforesaid, it is provided under order 40 Rule 3(1) of the Civil Procedure Rules that; “*3(1) in case of disobedient breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release”* In the case of Teachers Service Commission vs Kenya National Union of Teachers & 2 others (2013) eKLR the court stated as follows; “*The reason why courts will punish for contempt of court then is to safe guard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the Applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”* Contempt of court is a grave matter as it concerns the dignity of the court when law and order is threatened and the fact that liberty and fundamental rights and freedoms of the alleged contemnor are at stake. The standard of proof is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt. In the case of Republic vs Ahmad AbolfathiMohammed & Another (2018) eKLR**,** the Supreme Court stated as follows: *“We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:* *‘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...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 an offence which can be said to be quasi-criminal in nature.’* *The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct”* In the instant case it is on record that the Court delivered judgement against the Defendants on 21st November 2022 a mandatory order was issued compelling the Defendants herein to issue to the Plaintiffs Members Completion documents within Ninety (90) days from the date of the Judgment to enable the Plaintiffs Process their respective Title documents for the suit plots. The 2nd Respondent states that this application is incompetent and has not met the threshold for content. That they have executed copies of the transfer documents and completion documents. From the court record the Defendants/Respondents have asked for time to complete the process but this has not been done from 2022 to date. This is a period of almost 4 years. I find that the Defendants are being mischievous and Court orders must be obeyed. I find that this application is merited and I make the following orders; 1. That the Defendants are to is to comply with the court order issued on 3rd August 2022 within the next 60 (sixty) days after service of this order failure of which the will be cited for contempt and be directed to pay a fine of Kshs. 50,000/= and in default, the 1st Defendant and its Current Chairman and the 2nd Defendant and it's Managing Director/ CEO to be committed to civil jail for a period of one (1) month each. 2. That costs of this application to the applicants. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**