[2019] KEELC 2318 (KLR)
The court found that unauthorized video recording of court proceedings, particularly with the intent or effect of intimidating witnesses or court officers, is improper and cannot be tolerated. Although the court did not view the video, it accepted the representation of counsel as credible and determined that the...
Source-derived case information.
- Citation
- [2019] KEELC 2318 (KLR)
- Parties
- Applicant: Mohamud Iltarakwa Kochale; Applicant: Kochale Somo Chale; Applicant: Issa Jitewe Gambare; Applicant: David Tomasot Arakhole; Applicant: William Lengoyiap; Applicant: Sekotey Seye; Respondent: Lake Turkana Wind Power Ltd; Respondent: Marsabit County Government; Respondent: The Attorney General; Respondent: Chief Land Registrar; Respondent: The National Land Commission; Interested Party: Aaron Iltele Lesiantam; Interested Party: Henry Parasian Sakalpo; Interested Party: Stephen Nakeno; Interested Party: Job Lmalasian Lengoya; Interested Party: Dair Lentipan
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 163 of 2014
- Procedural Posture
- Environment and Land Case / Interlocutory Ruling on Courtroom Conduct and Security
- Outcome
- Order for exclusion of all parties from courtroom except counsel, court staff, and security until final determination of the case.
- Legal Topics
- Courtroom Conduct, Witness Intimidation, Video Recording in Court, Public Order in Proceedings
- Source Language
- en
Source-derived case record
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Parties
Mohamud Iltarakwa Kochale
Applicant
Kochale Somo Chale
Applicant
Issa Jitewe Gambare
Applicant
David Tomasot Arakhole
Applicant
William Lengoyiap
Applicant
Sekotey Seye
Applicant
Lake Turkana Wind Power Ltd
Respondent
Marsabit County Government
Respondent
The Attorney General
Respondent
Chief Land Registrar
Respondent
The National Land Commission
Respondent
Aaron Iltele Lesiantam
Interested Party
Henry Parasian Sakalpo
Interested Party
Stephen Nakeno
Interested Party
Job Lmalasian Lengoya
Interested Party
Dair Lentipan
Interested Party
Procedural Posture
Environment and Land Case / Interlocutory Ruling on Courtroom Conduct and Security
Legal Issues
- 1 Whether unauthorized video recording of court proceedings constitutes improper conduct and potential intimidation of witnesses or parties.
- 2 Whether the court should exclude parties from the courtroom to ensure the integrity and security of the proceedings.
Ratio Decidendi
The court found that unauthorized video recording of court proceedings, particularly with the intent or effect of intimidating witnesses or court officers, is improper and cannot be tolerated. Although the court did not view the video, it accepted the representation of counsel as credible and determined that the existence of such a recording posed a risk to the integrity of the proceedings and the safety of participants. Given the inability to identify the specific individuals responsible, but recognizing that the conduct likely involved parties to the case or their agents, the court exercised its discretion to exclude all parties from the courtroom for the remainder of the trial. Only...
Court Disposition
Order for exclusion of all parties from courtroom except counsel, court staff, and security until final determination of the case.
Orders
- Henceforth, this case shall be heard in the absence of all parties except counsel, court assistants, research officers, and security details.
- This order shall remain in force until the final determination of this case.
Full Case Text
Judgment text and source record
60 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 163 OF 2014 (FORMELY NAIROBI ELC 1330 OF 2014)
MOHAMUD ILTARAKWA KOCHALE.............................1ST APPLICANT
KOCHALE SOMO CHALE ................................................2ND APPLICANT
ISSA JITEWE GAMBARE..................................................3RD APPLICANT
DAVID TOMASOT ARAKHOLE........................................4TH APPLICANT
WILLIAM LENGOYIAP......................................................5TH APPLICANT
SEKOTEY SEYE.................................................................. 6TH APPLICANT
(SUING ON BEHALF OF THE RESIDENTS OF LAISAMIS CONSTITUENCY
AND KARARE WARD OF MARSABIT COUNTY)
=VERSUS=
LAKE TURKANA WIND POWER LTD........................1ST RESPONDENT
MARSABIT COUNTY GOVERNMENT.......................2ND RESPONDENT
THE ATTORNEY GENERAL ........................................3RD RESPONDENT
CHIEF LAND REGISTRAR............................................4TH RESPONDENT
THE NATIONAL LAND COMMISSION........................5TH RESPONDENT
AARON ILTELE LESIANTAM...........................1ST INTERESTED PARTY
HENRY PARASIAN SAKALPO..........................2ND INTERESTED PARTY
STEPHEN NAKENO............................................3RD INTERESTED PARTY
JOB LMALASIAN LENGOYA............................4TH INTERESTED PARTY
DAIR LENTIPAN ..................................................5TH INTERESTED PARTY
RULING
When this court resumed hearing this morning, Mr. Kiprop, counsel for the interested parties’ drew the court’s attention to an incident that occurred yesterday (22. 7.2019) when FARARA LENAIKOI (IPW 3) was testifying. Counsel informed the court that the witness had informed him that there is a video recording taken while he was testifying and which is circulating on a whatsapp group. The recording is likely to endanger the lives of the interested parties who have always opposed the plaintiff’s case. Counsel asked the court to intervene and punish the involved parties if they can be identified as doing the recording is also illegal.
Mr. Kiprop was supported by both Mr. Wairoto counsel for 1st defendant and Ms. Kungu counsel for the 3rd and 4th defendants and also holding brief for Miss Njuguna for 5th defendants.
Mr. Minishi for 2nd defendant left the matter to the court.
Ms. Hashi for the plaintiffs reserved her right to respond and urged the court to consider the complaint as a delaying tactic and asked the court to proceed with the trial. Counsel nonetheless referred to a similar incident on 23rd May 2016 when Justice Njoroge who was then handling the matter gave some directions. She said that all this might very well be internal frustrations by the parties. She added further that she had not seen the video in question and would like to have access to it.
The court adjourned to chambers to consider the issues raised.
While in chambers, one of the court assistants Ms. Cecilia Ekeno who is the Samburu interpreter, informed us that when the court adjourned yesterday (22nd July 2019), she was accosted by some people who told her to step aside so that the interpretation can be done by someone else. They even proposed that the interpretation be done by another person whose name they gave as ELIJAH who is employed by a law firm in Meru town.
We have anxiously considered the concerns raised by Mr. Kiprop and the responses thereto.
As a court we have not had the advantages of viewing the video although Mr. Kiprop had volunteered to share it with us and other counsel. However Mr. Kiprop is an officer of this court and we do not think he could raise such a serious matter if he did not have evidence to that effect. We are satisfied that the video exists and we don’t consider it prudent to take the court’s time watching it. We must get on with the core business of this court which is to finalize this case that is just about to end in terms of receiving the evidence of the witnesses.
The court has also looked at the record of 23rd May 2016 when the then counsel for 2nd defendant MR. ABDI HASSAN complained to Justice Njoroge about an incident which occurred on 9th March, 2016 when he was accosted by a crowd, threatened and called names. The incident was witnessed by the deputy registrar of this court and counsel. Justice Njoroge warned the plaintiffs to keep order while in court.
It is of course improper for any person without the leave of the court, to record the proceedings particularly if the intention is to intimidate the witnesses and even the court. We take great exception to that.
Similarly, we cannot ignore the issue raised to us by the court assistant, also an officer of the court about having been intimated by some people yesterday (22nd July 2019).
Right now this court is not in a position to know who is circulating the video or who accosted Ms. Cecilia Ekeno. What is clear to us however is that whoever it is, must be a party in these proceedings or acting on their directions. As this matter is coming to a close, the only order we find appropriate to make is to have this case henceforth heard in the absence of all the parties herein. Only counsel, the court assistants, research officers and the security details shall remain in court. This order shall remain in force until the final determination of this case.
HON. JUSTICE B. N. OLAO
Sign: ........................................... date: ...........................................
HON. JUSTICE L. N. MBUGUA
Sign: .............................................. Date: ........................................
HON. JUSTICE E. C. CHERONO
Sign: ............................................... Date: ........................................
23/7/2019
Later at 11. 00 am
Coram as before
Kananu (Meru Interpreter)
Cecilia (Samburu/Turkana interpreter)
Lomurut (Rendille interpreter)
Mr. Sagana and Ms. Hashi for plaintiffs
Mr. Wairoto for 1st defendant
Mr. Minishi for 2nd defendant together with Ms. Barako
Ms. Kungu for 3rd and 4th defendant’s also holding brief for Ms. Njuguna for 5th defendants
Mr. Kiprop for interested parties
The ruling is hereby delivered to the parties and counsel.
HON. JUSTICE B. N. OLAO
Sign: ....................................... Date: ......................................
HON. JUSTICE L. N. MBUGUA
Sign: ......................................... Date: ....................................
HON. JUSTICE E. C. CHERONO
Sign: ........................................... Date: ...................................