[2016] KEHC 5055 (KLR)
The court found that the respondent was in contempt of a valid court order restraining him from interfering with the applicant's business premises. Despite the applicant's request for a custodial sentence, the court considered the respondent's advanced age, ill health, and remorse as mitigating factors. The court...
Source-derived case information.
- Citation
- [2016] KEHC 5055 (KLR)
- Parties
- Applicant: Moses Ongonga Nyabinda; Respondent: Shamsherali Hussein
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 462 of 2014
- Procedural Posture
- Miscellaneous Application / Sentencing After Conviction for Contempt of Court
- Outcome
- Respondent sentenced for contempt of court; non-custodial sentence imposed.
- Legal Topics
- Contempt of Court, Injunction Orders, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Ongonga Nyabinda
Applicant
Shamsherali Hussein
Respondent
Procedural Posture
Miscellaneous Application / Sentencing After Conviction for Contempt of Court
Legal Issues
- 1 Whether the respondent was in contempt of court orders issued on 29th November 2013.
- 2 What is the appropriate sentence for contempt of court in the circumstances.
Ratio Decidendi
The court found that the respondent was in contempt of a valid court order restraining him from interfering with the applicant's business premises. Despite the applicant's request for a custodial sentence, the court considered the respondent's advanced age, ill health, and remorse as mitigating factors. The court determined that a non-custodial sentence was appropriate and imposed a fine of KES 100,000, with a default custodial sentence of three months' civil jail if the fine was not paid within 21 days.
Court Disposition
Respondent sentenced for contempt of court; non-custodial sentence imposed.
Orders
- The respondent shall pay a fine of KES 100,000 within 21 days.
- In default of payment, the respondent shall be arrested and serve three months civil jail in any government prison.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APPLI. NO. 462 OF 2014
MOSES ONGONGA NYABINDA......................................... APPLICANT
V E R S U S –
SHAMSHERALI HUSSEIN..................................................RESPONDENT
SENTENCE
Shamsherali Hussein, the 2nd defendant/Respondent was convicted for contempt of court orders issued on 29th November 2013. The Plaintiff/Applicant had successfully obtained an order of injunction to restrain the 2nd defendant and another from entering, trespassing interfering and or demolishing the Plaintiff’s business premises and or kiosk located at Balozi estate (South B) pending the hearing interpartes hearing of the application for injunction vide Milimani C.M.C.C no. 7520 of 2013. The aforesaid order was served upon the 2nd defendant and his servants disobeyed the court order by removing the Plaintiff’s kiosk from where it was initially located and dumped sand gravels in its place on 29. 12. 2013 todate.
Upon convicting the 2nd defendant as aforestated, this court invited him to make oral submissions in mitigation before sentence. Mr. Malinzi, learned advocate for the 2nd Respondent state that his client is remorseful and regrets breaching the court orders.
The 2nd Respondent beseeched this court met out a lenient sentence. Mr. Malinzi further pointed out that the 2nd Respondent is an old man aged 70 years with ill health. He produced medical documents showing the 2nd Respondent had undergone coronary artery bypass graft surgery on 22nd March 2016.
After considering the mitigating factors, I am satisfied that the 2nd Respondent is remorseful.
In the application filed by the Plaintiff/Applicant, the Applicant sought for the contemnor to serving civil jail 6 months. I have considered the mitigating factors presented by the 2nd Respondent I am convinced that the appropriate sentence should be non-custodial. I think the most appropriate sentence is fine. Consequently Shamsharali Hussein is sentenced to pay a fine of ksh.100,000/= within a period of 21 days in default he should be arrested and taken to custody to serve civil jail for three(3) months in any government prison.
Dated, Signed and Delivered in open court this 20th day of May, 2016
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Applicant
..................................................... for the Respondent