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JudgmentJANE NYABOKE MATOKE VS The Republic5 min read

JANE NYABOKE MATOKE VS The Republic

High Court at Kisii High Court · · Odera Teresa Achieng


Jane Nyaboke the Applicant herein moved this court vide the application dated 12..2.24 seeking that:

  1. Spent
  2. That  the respondent be permanently  restrained from arresting ,holding, detaining , incarcerating and/or in any other way interfering with the applicant’s liberty and or visiting the applicants ‘s home office any other place in any other way harassing the applicant.
  3. An order do issue compelling the respondent to unconditionally release the applicants vehicle Chevrolet Registration Number KCJ 660 A.
  4. The respondent be sentenced to 6 months imprisonment or such longer period as the court may direct and be fined for disobedience of the court orders issued on 4.12.23. .
  5. The respondent be restrained from interfering with that applicants liberty , properties and in any manner not to threaten or coming into the applicants home family or any other place .
  6. Costs of this application be provides for .
  7. The order issued on 9th day of February by he Senior Magistrate Ogembo be set aside .

The application is based on the annexed affidavit of Jane Nyaboke and grounds that :

  1. On 4.12.24 this court issued orders restraining the respondents from arresting applicant pending determination of the anticipatory bail application .
  2. The respondents were at all he material times represented by the ODPP Kisii region who appeared in court whenever the matter came  in court .
  3. That the said orders were served upon the OCS a day before by counsel on record but he went to Ogembo court on 8.2.24  and obtained orders to detain the vehicle as he hunts for the applicant .
  4. The respondents in defiance of the said order resorted to intimidating , harassing coercing and issuing threats to the applicant and interfering with her personal liberty.
  5. The respondents in defiance of the said order resorted to intimidating , harassing coercing and issuing threats to the applicant and interfering with her personal liberty.
  6. That the said actions amount to contempt of the orders of this court and must be punished as respondent had no intention of obeying the orders of this court.
  7. That the said actions amount to contempt of the orders of this court and must be punished as respondent had no intention of obeying the orders of this court.
  8. That the said actions amount to contempt of the orders of this court and must be punished as respondent had no intention of obeying the orders of this court.

The applicant in  her supporting affidavit dated 8.2.24 stated how she was with her sister and driver at Nyangusu  market when she was ambushed by the Deputy  OCS  George Jefwa who roughed her up and assaulted  her driver and took  away the ignition key.    The officers looking for her and the  officers went to that hotel and harassed customers while combing the place .She left the hotel at night through the back door and ran through sewer lines and swamps for safety. Also that her sister who is aged and sickly was driving in her car to the police station and detained until 11.00pm when she was released. Further that her advocate Mr Julius Nyakiangana called on the OCS and sent him the court order which had been earlier served upon them. She annexed the court order dated 4.12.23 and orders  Misc application no 20 of 2024 Ogembo .

Inspector G . Jefwa the deputy  OCS Nyangusu police station replied to the application dated 12.2.24 through a letter dated 25.2.24 . he told this court that a case of breach of contract for harvesting of sugar cane  worth Kshs 160,000/=  was reported to them on 28.5.23 by  one Hezborn Makori vide OB no. 28/05/2023  . Also that the complainant is running out of patience. He attached the statement of the complainant and bank statements .

     I have carefully considered the application, and the reply  and I have perused the orders dated 4.12.23 and I note that the same restrained respondents either by themselves ,their agents , representative or subordinates from  arresting, holding, incarcerating   or harassing the applicant in any away pending the interpartes hearing and determination of the application for anticipatory bail . I  have also looked at the return of service dated 7.12.23  filed by   David Nyangau a court process server in which  he stated that he served the 1st and 4th  respondents and that they signed and stamped the front of his copy of the order  dated 4.12.23 which he annexed to the affidavit  . Service as per the said affidavit was not controverted as the letter by the Deputy OCS clearly avoided to address of the disobedience of court orders .   It is clear from the said affidavit that the orders dated 4.12.23 were served upon the officer Commanding Nyanguso police station personally on 6 .12.24 at  3.20 PM  and we are not told why there was harassment of applicant and  an attempt to arrest her  despite the said orders being in place . The said harassment and attempted arrest were thwarted my members of public who  came to the rescue of the applicant by taking her away .  We are also not told why the deputy OCS proceeded to the subordinate  court to obtain contradictory orders to detain the vehicle of applicant pending her arrest . 


Nothing would have stopped the said officer from obeying the court orders pending interpartes hearing and determination of the anticipatory bail application. It is clear in my mind beyond any shadow of doubt that the Deputy deputy OCS Nyangusu police station blatantly disobeyed the court orders dated 4.12.23 on 8.2.24.

It is trite law that the dignity of the court must be upheld at all times and failure or disobedience of court orders is tantamount to disrespecting the court and ought not be taken lightly .


In the case of Republic V Kenya School of Law & 2 Others Ex Parte Juliet Wanjiru Njoroge & 5 Others [2015] eKLR it was held inter alia:

“… Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the Honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal”.


I find that no. 239733 Police Inspector G Jefwa Deputy OCS Nyagusu police station was deliberately in contempt of court orders dated 4.12.23 .

.I proceed to fine him Kshs 50,000/= of four Months imprisonment in default . The said sum be paid in court within 30 days from today or he will serve the prison term .

T.A ODERA

JUDGE

30.5.24

DELIVERED VIRTUALLY IN THE PRESENCE OF Koima for the state and Mr Julius Nyakiangana for the applicant.

CA :  OIGO

Order :

Julius Nyakigana: we filed submissions for the main application we seek a mention date to confirm, compliance.

Koima :  we will conform compliance

Order :  mention on 27.6.24 for compliance with the fine and Submissions .

T. ODERA

JUDGE

30.5.24.

    JANE NYABOKE MATOKE VS The Republic JANE NYABOKE MATOKE VS The Republic