[2025] KEELC 24 (KLR)

Otieno v Ndirangu (Environment and Land Appeal E36 of 2023) [2025] KEELC 24 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 24 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment and Land Appeal E36 of 2023

A Ombwayo & A Ombwayo, JJ

January 16, 2025

Between

Kefa Omuyoma Otieno

Appellant

and

Francis Gathambo Ndirangu

Respondent

Ruling

1. Kefa Omuyoma Otieno (hereinafter referred to as applicant) has come to this court for orders that the honorable Court be pleased to hold the Respondent and/or his agents/servants in contempt of the orders of Court issued on 1Ith April, 2024 and direct their committal to civil jail for six months or as the Court deems fit. In the alternative Honorable Court orders the attachment of the Respondent's and/or his agents/servants properties as consequence of the breach or disobedience of the orders of Court issued on 11th April, 2024. Lastly, that the Costs of this application be provided for.

2. The application is made on grounds that the Applicant obtained an order of temporary injunction restraining the Respondent from dealing, entering, remaining, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with the parcel of land known as L.R 40836/43 in Kangawa Area measuring approximately 1. 25 acres pending hearing and determination of the appeal herein.

3. The Respondent was duly served with the said orders on 1st May, 2024 and he duly signed on the back thereof to confirm said service. That however, the Respondent has in breach and disobedience of the Court orders therein destroyed and broken down the Applicant's fence on the suit land, continued to block off the Applicant from accessing the land since he has employed thugs/goons who chase away the Applicant from accessing the suit land whenever the Applicant and his workers go to cultivate the land;

4. The Respondent was personally served with the orders and is thus well aware of the existence of the said orders and thus clearly his flagrant disobedience of the same offends the Court's integrity.

5. The Respondent has been served with several notices to comply with the orders of this Honorable court but has adamantly ignored the notices and/or neglected to comply. It is in the interest of justice that the Respondent suffer the consequences of his contemptuous actions.

6. In the supporting affidavit, the applicant states that at all material times herein, he has been the bona-fide purchaser of all the parcel of land known as L.R 40836/43 in Kangawa Area measuring approximately 1. 35 acres.

7. He instituted a suit against the Respondent vide a plaint dated 13/5/2020 in Molo Chief Magistrate's Court ELC Case No.23 OF 2020. Circumstances being that the Respondent failed to give vacant possession and continued trespassing on the suit land. The Respondent duly filed his statement of defence dated 22nd June, 2020 wherein he admitted to having executed the agreement dated 3/5/2012 and being in receipt of the consideration sum of Kshs30,000. The Respondent in his submissions dated 18/9/2023 submitted that the suit was time barred by 2 years for claims of a refund and 6 years for a contract. The Trial Court rendered its judgment dated 8th November, 2023.

8. Being aggrieved by the Trial Court's judgment, the applicant filed the instant appeal averring that the Trial Court erred in finding that limitation for contracts for land matters is the same as that for general contracts which is 6 years instead of 12 years.

9. He further filed an application dated 7th February, 2024 which is on record herein, seeking for temporary injunction orders against the Respondent herein which orders were issued by this honorable Court on 11th April, 2024. He said Orders were duly served upon the Respondent herein who appended his signature at the back of the duplicate thereof to confirm service of the same.

10. The process server namely, Mr. Nyaramba Mariera has filed his certificate of service dated 2/5/2024 herein to confirm said service. Thus clearly, the Respondent was duly served with the Court orders dated 11th April, 2024 as by Law required and thereof well aware of the existence of the said orders.

11. The Respondent was served with the aforesaid application dated 7th February, 2024 together with the Memorandum of Appeal herein. Thus clearly, the Respondent has knowledge of the existence of the court order barring him from interfering with the suit land as per the Court order dated 11th April 2024. The Respondent and/or his agents and servants have however continued to interfere with the land contrary to the said order. From the year 2012, the applicant has been cultivating on the suit land but now not able to do so as the Respondent has decided to openly disobey the Court orders dated 11th April 2024. He has severally been physically chased by goons employed by the Respondent whenever he goes to cultivate his land. The Respondent has further damaged and knocked off his fence around the suit land which is a direct contravention of the Court orders issued on 11th April 2024. The Respondent has adamantly refused to comply with the court orders and continue to interfere with the land in open disobedience in the face of the court.

13. The Court orders are not given in vain and thus the Respondent's actions should not be left to continue unabated and he should suffer the consequences of his actions.

14. The court should act to not only protect the integrity of the Court but also to uphold the rule of law and the interests of the parties in this dispute.

15. In the case of Econet Wireless Kenya Limited Vs Minister For Information And Communication Of Kenya Authority [2005] eKLR Hon Justice Ibrahim (as he then was) stated as follows: -“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void. (emphasis)

16. Likewise in the case of T.N Gadavarman Thiru Mulpad v Ashok Khot and anor [2005] 5 SCC, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: -“Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied withThe standard of proof required in cases of contempt is higher than that acquired in an ordinary civil case. Before a finding of contempt can be made, there must a demonstration of willful and deliberate disobedience of a court order.

17. In Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 it was held that-A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…… it must be higher than proof on a 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 criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.

18. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” (own emphasis)

19. In the light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of said order.

20. In Oilfield Movers Ltd – Vs – Zahara Oil & Gas Limited [2020]eKLR the court stated -It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty…..”

21. In order to find a person guilty of contempt there must be proof of willful and intentional disobedience of a court order. In Mahinderjit Singh Bitta – Vs Union Of India & Others 1A NO 100 OF 201O the Supreme Court of India stated as follows: -In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution (own emphasis)

22. This court has a duty to protect its integrity and rule of law. The respondent has failed to respond to the allegation of contempt and therefore I do find that the applicant has proved the allegations that the respondent has prevented the applicant to utilize the land by hiring goons to chase away the applicant whenever he sets to work on the suit-land. Therefore disobeying the court order of injunction, made on 11th April, 2024 restraining the Respondent from dealing, entering, remaining, constructing, selling, alienating, trespassing, interfering, charging and/or any other way dealing with the parcel of land known as L.R 40836/43 in Kangawa Area measuring approximately 1. 25 acres pending hearing and determination of the appeal herein.

23. Ultimately, I do hold the Respondent Francis Gathambo Ndirangu in contempt of the orders of Court issued on 1Ith April, 2024 and direct that he be committed to civil jail for two months. In the alternative, the respondent to pay a fine of Kenya Shillings Two Hundred Thousand Only (Ksh 200,000/-) .Warrants of arrest to issue.

RULING DATED SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU THIS 16TH DAY OF JANUARY 2025. A. O OMBWAYOJUDGE