Introduction
1. The plaintiff filed application dated 26th November 2024 seeking orders that the court finds the 1st defendant and its Vice Chancellor Professor Solomon Shibairo, in contempt of the orders of this court dated 29th October 2008 and to pay fines of Kshs. 10, 000, 000/= and Kshs. 1, 000, 000/- respectively or any such appropriate amount and that the latter be jailed for a period of six months.
2. The application was anchored on the supporting affidavit of the plaintiff’s Kakamega Branch Manager one ESAW OKOTH BULU. He stated that the orders of 29th October 2008 issued in the presence of all parties required the defendant to maintain status quo and not interfere with the suit property. That the orders were reinstated in 2015. That the 1st defendant and its vice chancellor have violated the said orders by fencing the suit property and excavating it.
3. The application was opposed. Professor Solomon Shibairo swore a replying affidavit and denied being in contempt of the court orders He stated that the scope of the orders did not include what the 1st defendant had done on the land which was to remove bushes from the land and levelling it to avoid accidents on the land which was then being used for recreation purposes by the 1st defendant’s students. That the application was premature as no leave was granted.
4. He maintained that the orders made were for a specific period which had lapsed. That the plaintiff did not own the land as it had been allocated an alternative land and that the plaintiff filed a similar application dated 8th March 2010 which was determined. That another similar application dated 11th July 2019 was filed but later withdrawn. That the plaintiff is not willing to have this matter determined but is using applications for contempt to delay the matter.
5. The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 18th March 2025 and those filed by the 1st defendant dated 25th April 2025; both of which the court has duly considered.
Analysis and determination
6. The court has carefully considered the application, the response thereto as well as rival submissions. The single issue arising for determination is whether the applicant has met the threshold for contempt.
7. Contempt is any conduct that despises the authority and dignity of the court. The Black’s Law Dictionary 9th Edition defines Contempt as;
“The act or state of despising; conduct of being despised. Conduct that defies the authority of a court or legislature, because such conduct interferes with the administration of justice.”
8. Contempt of court is defiance of the authority of the court. The legal framework in respect of contempt is anchored on section 5 of the Judicature Act which confers jurisdiction on Superior Courts to punish for contempt and uphold the dignity and authority of courts.
9. Courts punish contempt for purposes of upholding the rule of law which is the cornerstone of any democratic state like ours. In the case of Econet Wireless Kenya Limited Vs Minister For Information and Communication of Kenya Authority [2005] eKLR, the court 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.”
10. Similarly, 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 with.”
11. Civil contempt proceedings are quasi-criminal proceedings. As the consequences thereof may include deprivation of the liberty of a proven contemnor, the standard of proof for contempt is higher than the standard of proof required in ordinary civil cases of the balance of probabilities, although the same is slightly below the standard of proof of beyond reasonable doubt required in criminal cases.
12. To prove contempt, an applicant ought to show that there exist clear and unambiguous terms of a court order; that the respondent was aware of those terms but deliberately and or willfully disobeyed the same.
13. In the instant matter, the plaintiff argued that the respondents are guilty of violating the orders issued by this court on 29th October 2008. That those orders were restated in subsequent years thereafter. The court has considered the orders of 29th October 2008. They were interim orders granted requiring maintenance of status quo in that the defendant was required not undertake further works like painting or issue notices to the tenants in occupation, pending the inter partes hearing of an application dated 24th October 2008.
14. From the documents presented by the plaintiff, on 2nd December 2015, the court extended the orders of 29th October 2008 by 60 days. That means that the said orders lapsed on 2nd February 2016. There is no evidence that the orders made on 29th October 2008 were in existence or in force in 2024, when the alleged acts of contempt are said to have been committed by the respondents. In short, as of 2024, the orders made on 29th October 2008 were no longer in force.
15. I am therefore not convinced that there was contempt of court and therefore I find and hold that the plaintiff’s application dated 26th November 2024 lacks merit and the same is hereby dismissed with costs.
16. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 10TH DAY OF JUNE, 2026
In the presence of;
Ms Bett for the plaintiff
Mr. Mamadi for the 1st defendant
Ms Munihu for the interested party
Court Assistant- Delphine