[2022] KEELC 13522 (KLR)
The court found that the appropriate remedy for the contempt committed by the 2nd and 3rd respondents was not merely punitive but restorative. Given the ongoing use of the access road in violation of court orders and the absence of an apology or compensation, the court exercised its discretion to order the...
Source-derived case information.
- Citation
- [2022] KEELC 13522 (KLR)
- Parties
- Applicant: David Muindi M’Liria; Respondent: Land Adjudication Officer, Amungenti “A” Adjudication & Settlement Section; Respondent: Chief Kabuline Location; Respondent: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E003 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Sentencing for Contempt of Court
- Outcome
- Contemnors ordered to purge contempt by restoring access road and paying for fence restoration.
- Judges
- CK Nzili
- Legal Topics
- Contempt of Court, Enforcement of Court Orders, Land Adjudication, Restoration of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muindi M’Liria
Applicant
Land Adjudication Officer, Amungenti “A” Adjudication & Settlement Section
Respondent
Chief Kabuline Location
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Sentencing for Contempt of Court
Legal Issues
- 1 Whether the 2nd and 3rd respondents should be punished for contempt of court.
- 2 What is the appropriate sanction or remedial order for the contempt committed by the respondents.
Ratio Decidendi
The court found that the appropriate remedy for the contempt committed by the 2nd and 3rd respondents was not merely punitive but restorative. Given the ongoing use of the access road in violation of court orders and the absence of an apology or compensation, the court exercised its discretion to order the contemnors to purge the contempt by restoring the access road to its designated position as per the demarcation maps, to the satisfaction of the petitioner. Additionally, the contemnors were ordered to bear the costs of restoring the fence, as assessed by a qualified expert. This approach aligns with the court's powers under the relevant statutes and case law to ensure compliance with...
Court Disposition
Contemnors ordered to purge contempt by restoring access road and paying for fence restoration.
Orders
- The contemnors shall restore the access road in line with the demarcation maps to its designated position and to the satisfaction of the petitioner.
- The contemnors shall meet the costs for restoration of the fence, as assessed by a qualified expert.
Full Case Text
Judgment text and source record
25 paragraphs
M’Liria v Land Adjudication Officer, Amungenti “A” Ajudication & Settlement Section & 2 others (Constitutional Petition E003 of 2021) [2022] KEELC 13522 (KLR) (5 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13522 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Constitutional Petition E003 of 2021
CK Nzili, J
October 5, 2022
Between
David Muindi M’Liria
Petitioner
and
Land Adjudication Officer, Amungenti “A” Ajudication & Settlement Section
1st Respondent
Chief Kabuline Location
2nd Respondent
Hon. Attorney General
3rd Respondent
Ruling
1. This court by a ruling dated April 27, 2022 found the 2nd and 3rd respondents (hereinafter the citees) guilty of contempt of court and directed them to mitigate before the sentencing. Both citees filed mitigating statements under oath sworn on May 6, 2022.
2. Further to this, Mr Kieti the senior litigation counsel on record for the respondents orally submitted and adopted the mitigation statements whose gist was that the citees were remorseful for the unbecoming conduct, are civil servants with families who depend on them and above all, were first offenders willing to reform and or comply with the court orders.
3. Mr Kiruai counsel on record for the applicant submitted that even though damage was done to the suit property, despite the mitigation, his client had received no apology from the citees, the access road continues to be used and the only remedy under the circumstances was to have the access road closed to revert to its original position. Further, it was submitted that no offer for the compensation for the damage had been made to the petitioner as the petition has still pending determination.
4. In Woburn Estate Ltd v Margaret Bashforth (2016) eKLR the court held that under sections 29 of the Environment and Land Court Act 35 and 36 the High Court (Organization and Administration) Act as read together with section 63 (e) of the Civil Procedure Act and section 5 of the Judicature Act and order 40 rule 3 of the Civil Procedure Rules, the court has powers to punish for contempt of court.
5. The consequences of finding a party in contempt of court is either to impose a fine, give a custodial sentence or both. The court has also the discretion to direct that the contemnors to take a positive action to purge the contempt. See Miguna v ODPP cite and 2 others(2018) eKLR and in Eliud Muturi Mwangi (P/a Muturi & Co advocates) v LSG Buthansa services Europa Africa GMBH & another(2015) eKLR.
6. Applying the above principles and given the circumstances of this petition, I order that the contemnors do purge the contempt of court by refixing the access road in line with the demarcation maps to its designated position and to the satisfaction of the petitioner. Costs for the restoration of the fence shall be met by the contemnors upon assessment by a qualified expert.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 5TH DAY OF OCTOBER, 2022. In presence of:C/A: KananuKieti for 1st & 2nd contemnorsMr. Muthomi Njeru for petitionersHON. C.K. NZILIELC JUDGE