https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4695

**THE REPUBLIC OF KENYA** **IN THE ENVIROMENT AND LAND COURT AT HOMABAY** **ELCLOS/E024/2025** WALTER ODEDE OKELLO **……….…………. ………………APPLICANT** **VERSUS** **RAYMOND LWANGA ………………… RESPONDENT/ CONTEMNOR** **BEFORE HON JUSTICE J.W WANYONYI** **RULING** 1. This application was made under Articles 159 B of the Constitution, Section 3 of the Judicature Act, Section 1A,1B and 3A of the C.P.A and order 51 Rule 1 of Civil Procedure Rules. 2. He is seeking for the following orders that: 3. Spent 4. This Honourable court be pleased to cite the Respondent, one Charles Otieno Gunde for the intentional and contempt of the order of this Honourable court issued on 23rd April ,2026 and further the said person be committed to Civil jail for six (6) months and be ordered to pay a fine to this Honourable court 5. This Honorable court be pleased to condemn the Respondent herein by paying the Applicant the sum of Kshs 1,500,000 /= to purge the contempt being the total value of trees, plantation and food crops and damaged by the illegal activities of the Defendant. 6. This Honourable be pleased to grant any other or further orders for the purpose of protecting the dignity of the court. 7. Costs of the application be provided for. 8. The grounds for the application are seven (7) in number. 9. The application is supported by the affidavit of the Applicant, Walter Odede Okelo. 10. A replying affidavit was filed by the Contemnor/respondent sworn on 19th June,2026 and filed in court on 20th June,2026. 11. The respondent states that the land parcel in issue is not in existence as it was closed upon subdivision. 12. That he has not moved to the said portion that is claimed by the Applicant, that he has not destroyed the property therein or interfered with possession. 13. The picture that is annexed is him and others walking to the home of Jennifer Awino, a family member who is deceased. 14. That they were walking on a portion that is different from the one occupied by the Plaintiff which is marked as C while they were on A next to B. 15. That there is no report as to where the trees are and on which part of the land. 16. That there is no report to cap the alleged damage at Kshs 1,500,000/= 17. That annexures marked W00-2B are not his conservation. 18. That the report to the Police was made before filing suit and investigations were done and he was absolved 19. In his rejoinder made on 4th June ,2026 the Applicant has negated the issues raised the by the Defendant/Contemnor. 20. He states that the Respondent schemed through succession proceedings was to close the title after proceedings for adverse possession had been instituted. 21. That he has lived on property since and has buried his parents thereon. 22. That the respondent cannot disobey a court order on the basis of subdivision of the original title. 23. The respondent conforms contempt at paragraph 9 of his affidavit and he also admits he was on the suit property. 24. The mere fact of telling John Okumu to remove his crops also confirms contempt. 25. The allegation that Winnie Okumu holds title, if proven amounts to contempt. 26. The matter relating to the OB number is still an active matter and still pending under investigation. He was arrested and released on cash bail. 27. That the matter is now under the watch of two police stations, that is Oyugis and Kosele 28. The applicant has availed a Valuation cum assessment report to confirm the extent of damage **DIRECTIONS** 1. Directions in respect of the application for contempt were made on 19th May 2026 and on 12th June 2026 Migele sought for further indulgence. 2. Further leave was granted and a ruling date given in the presence of both counsels 3. The firm of Aziz &Associates Advocates representing the applicant filed initial submissions dated 30th May,2026 and thereafter supplementary submissions both I shall consider. 4. The issue addressed by counsel is whether the Respondent should be punished for contempt. 5. Counsel maintains that the orders were made in the presence of Counsel. 6. There being no affidavit in reply and court being convinced that Counsel for the Respondent had been served, decided to proceed ex-parte. 7. That report made to the police was before filing suit and police did investigations and found he was not involved in the destruction 8. He prays for dismissal of the application with costs. 9. It was the submission of Counsel for the Applicant that, by consistently disobeying court orders and returning to the land, the Respondent is in contempt of court orders and should be found to be so. 10. To support his submissions, Counsel for the Applicant relied upon the definition of contempt in the black Law Dictionary , order 40 rule 3 of the CPR, **Osborne’s Concise Law Dictionary** for the definition of Contempt of Court, the case of **Hudkinson vs Hudkinson ,Republic vs Chief County Officer, Finance and Economic Planning , Nairobi City Council, Ex parte Stephen Muturi , Republic vs Ahmad Abdlfathi Mohammed & Another, Econet Wireless vs Minister For Communication and information of Kenya & Another, AB & another Vs RB and Mutitika vs Baharini Farm Limited** **while Denying that Contempt was committed, Counsel for the Respondent relies on the decision of SAD V EOO and Mutitika v** **Baharini farm which address the elements of contempt** **Issues for determination:** 1. **Whether the Respondent is in contempt of court.** 2. **What remedies are available to the Applicant** **Contempt of Court:** ***“Contempt of court consists of conduct which interferes with the administration of justice or impedes or perverts the course of justice… Civil contempt consists of a failure to comply with a judgment or order of a court or breach of an undertaking of court.” –*** **Osborne’s Concise Law Dictionary, P. 102 A Thomson Company.** 1. Before any action can be found to amount to contempt of court, the following principles have to be established: - * Existence of a lawful order. * Potential Contemnor’s knowledge of the order. * Potential Contemnor’s failure to comply, that is, disobedience of the order. (**Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR)** 1. In the present case, it is not disputed that a suit was filed by the Applicant against the Respondent in and order of injunction was made on 3rd March ,2026 2. The orders of injunction were that the defendant should not interfere with the Plaintiff’s use and occupation of the part he has been in occupation measuring 4.32Ha 3. The court also stated in clear terms that any one disobeying the orders shall be liable for contempt. 4. Upon service, on 23rd April, 2026, Oriwo present for the Applicant and Migele for the respondent, Migele informed the court that the title had been subdivided and the court gave further orders on status quo in respect of the original parcels and the arising subdivisions. The court made it elaborate that parties should maintain their respective positions without any interference. 5. The said order compromised the application dated 27th February, 2026 6. It is clear from the chronology of events that there is in existence a lawful court order. 7. The Respondent’s knowledge of the lawful order and his disobedience of the same is confirmed by his reply to the application to the Applicant’s affidavits in support of the application; which means that he knows he could not dispute the Applicant’s claims. 8. The Contemnor confirms in his own words that he was seen at the scene with other parties while giving instructions to third parties and he qualifies the same by saying that he was attending a funeral. 9. He wants the court to believe that where he was standing is the home of the alleged deceased relative yet there is nothing shown to the contrary 10. The Respondent/Contemnor contradicts himself by stating that the land is not available and that court orders were issued in vain on one hand and again he says that the plots have been subdivided into three portions. 11. Thereafter he makes a visit to the suit land solely to cause commotion and then sets a defence that he was attending a funeral. 12. He also seems to be disputing the location of trees yet there is a report by a surveyor already filed in court and nevertheless he has not furnished evidence to the contrary. 13. That the conservations were not his though they were done by people in his company. 14. The issue of knowledge of orders as being sufficient was until recently, alien in our jurisprudence and where a party demonstrates knowledge of a court order through his conduct or otherwise the requirement for personal service is rendered unnecessary. 15. In **Kariuki and Others v Minister for Gender, Sports, Culture and Social Services and Others, (2004) I KLR 588, it was held;** *“...****but in our law, service is higher than knowledge and since the service here was frustrated…I shall hold in accord with the existing law that there was no service”. This was made following the decision in Wangondu (supra). However, the law has changed and as it stands today knowledge supersedes personal service and for good reason.*** *This has recently been held in Kenya Tea Growers Association vs Francis Atwoli & 5 Others, Petition No.64 of 2010 the court stated as follows;* *“****In the case before me, I am more than satisfied that even at the higher level of beyond reasonable doubt, when an individual has been served with and/or has knowledge of a court order but not only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli in fact went further to arrogate himself the decision to determine when the strike should end despite the fact that the Court Order had stopped it. He went further to interpret it has made without jurisdiction and that only the “Workers Court”, (the Industrial Court) had jurisdiction to determine the matter. He did not do so once but on a number of occasion as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious and his conduct and words can attract no other finding.”*** 1. As already indicated in this ruling, decided cases have established that ***“A party who knows of an order, regardless of whether, in view of that party, the order is null or valid, regular or irregular cannot be permitted to disobey it by reason of what that party regards the order to be. It is not for that party to choose whether or not to comply with such order. The order must be complied with in totality, in all circumstances by the party concerned subject to the party’s right to challenge the order in issue……. It is the responsibility of and duty of the party concerned, in case that party for some genuine reason finds compliance with the court order not possible, to appropriately move court issuing the order and bring to the attention of the court the reasons for noncompliance.”*** - See **Housing Finance Bank Ltd & Another vs. Edward Musisi Miscellenous Application 158/2010 CA**, **Makokha v Mwananchi Credit Ltd & another (Miscellaneous Civil Application E152 of 2024) [2025] KEHC 7919 (KLR) (28 May 2025) (Ruling)** 2. For all those reasons and there being no reasons advanced for his failure to comply with the order, this court finds that the Respondent is in contempt of court. There is no justifiable excuse for the Respondent to have continuously disobeyed the order of court. ***“Disregard of an order of the court is a matter of sufficient gravity, whatever the order may be.”*** – See **Hadkinson vs. Hadkinson.** 1. Application is allowed in the following terms with costs to the Applicant and the following orders are made: - 2. It is declared that the Respondent was in contempt of court orders by entering the suit land contrary to the terms of the court order 3. Costs of the Application are granted to the Applicant. 4. Summons to issue to the Area chief Nyalenda, location that is Benson Midigo and the OCS Oyugis Police Station to attend court and give an update on the situation on the ground in relation to Contempt proceeding on 2nd September,2026 5. The Respondent /contemnor do personally attend court for mitigation and sentencing on 2nd September,2026 RULING DATED, SIGNED AND DELIVERED AT HOMA BAY VIA VIRTUAL PLATFORM THIS 13TH DAY OF JULY 2026. In the presence of; 1. Migele for the defendant. 2. Oriwo for the applicant. 3. Court Assistant, Ms. Bosibori. **J.W. WANYONYI** **JUDGE** **13.07.2026**