[2023] KEHC 25208 (KLR)

Sang v Auctioneers & another; Kipketer (Interested Party); Kipketer (Third party) (Civil Case E002 of 2020) [2023] KEHC 25208 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25208 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Case E002 of 2020

RN Nyakundi, J

November 8, 2023

Between

Peter Kipsigei Sang

Applicant

and

Garam Auctioneers

1st Respondent

NCBA Kenya PLC

2nd Respondent

and

Sammy Kipketer

Interested Party

and

Beatrice Jeruto Kipketer

Third party

Ruling

1. This court having found the third defendant and the third party in contempt of court, issued warrants of arrest against them vide a ruling dated 16th June 2023. The applicant then proceeded to take out warrants of arrest against the contemnors. The contempt was with regard to the compliance with the orders issued on 4th October 2022. However, on 7th August 2023, the interested party, Sammy Kipketer Cheruiyot filed a replying affidavit wherein he produced all the tabulated records in compliance with the court order.

Decision 2. The two issues for determination are whether the contemnors are in contempt of court and secondly whether the court should punish the contemnors. The guiding principles in answering the above questions lie in the decision of the court in Directline Assurance Co. Ltd v Jamii Bora Bank Ltd & 5 Others eKLR where it was stated that: “ Now, to the second issue, what is the role of contempt proceedings in civil litigation? To my mind contempt proceedings are quasi – criminal in nature, and is a tool employed by a civil court to ensure obedience to the civil court’s orders and directions. A civil court has no interest in punishing a litigant, unless a litigant leaves the court with no option but to resort to quasi- criminal proceedings to punish a litigant. When a court orders are being disobeyed, or are about to be disobeyed, and the contemnor comes down and purges the contempt, either out of his own freewill or at the prompt of the court, the court will accept the purge of the contempt unless circumstances exist to suggest that the coming down, or the alleged purging of the contempt, is not genuine, or is done in bad faith, or is in itself a continuation of the original contempt. In accepting the coming down of the contemnor, the court will assess the reasons given for the disobedience, the time taken to come down, and the cost incurred in the process”.

3. The court in Sam Nyamweya & Others V Kenya Premier League Ltd and Others (2015) eKLR Justice Aburili stated that: “ Contempt of court is constituted by conduct tht demotes wilful defiance of or disrespect towards the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law. Whether in civil or criminal proceedings.”

4. In a different circumstance, the learned authors Halsbury’s Law of England Vo. (1) 4th Edition implicitly recognised the principles on this subject matter as follows: “Contempt of court can be classified as either criminal contempt, contempt, consisting of words or acts which impede or interfere with the administration of justice or which creates substantial risk that the course of justice will be seriously impleaded or prejudiced, or contempt in procedure, otherwise known as civil contempt consisting of disobedience to judgement, orders or other process of court and involving in private injury.

5. As the following precedents reveal a party may be purged of or freed from contempt which he or she has been cited previously in a legal proceedings if he or she answers all questions which he or she had previously refused to answer. There is no immunity from prosecution in contempt proceedings. The contemnors laid before the court the instrument which alludes to the contempt proceedings in the subject matter at hand. By that communication, it appears under these circumstances that their action may be regarded as having the effect of withdrawing the citation of warrant of arrest which had a subsequent order of punishment as laid down in the law. The contemnors also came forward after being cited for contempt indicating in their affidavits the underlying reasons for the delay in delivering the instrument to court. Some of the highlights which were fronted by legal counsel for the applicants was on the textual discrepancies of the instrument filed by the contemnors that do cast doubt on the validity and relevance of the contents expected of them touching on the dispute in question. The court construing the information filed as to the particulars of tenancy, mode of payment, rent chargeable, I appreciate that the substance of the material required of the record is thus far grounded in it. There is no evidence of a proper legal instrument demanded of the contemnors to compare with instant duly filed as constituting the knowledge of the identity of the tenants and their occupancy as at the time of preparing the inventory. The court takes it that the evidentiary facts known to the contemnors in the intestate estate has been properly captured to embrace the aspects of the property sanctioned and intended for preservation and enforcement of the rights of the beneficiaries. A lawful purge provision affords the opportunity for exoneration permitting the contemnor to avoid the penalty by some specific contact that is within the defendant’s ability to perform. Indeed at the hearing argued by both counsels it featured that the contempt has been purged. The court acting in this findings orders as follows: That a professional management agent be sourced and duly appointed to manage the property for the best interest of the estate and ensuing beneficiaries. As for the contempt proceedings the purging provisions comes to the aid of the contemnors.It is so ordered

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 8TH DAY OF NOVEMBER 2023In the Presence ofMr. Kigen & Co. AdvocatesMr. Keaton & Keaton AdvocatesR. NYAKUNDIJUDGE