MICHAEL ONDITI ODONGO VS State Law AND JOSHUA MWANGO AND 3 Others

RULING
1. By a notice of motion dated 27th May 2024, the plaintiff moved this court for orders that,
1. ...Spent.
2. That the honorable court do punish Joshua Migwasi and Manasseh Olweny, together with the 1st - 6th Interested Parties by attachment and sale of their movable property and/ or that the aforementioned be committed to Civil Jail for a period of six (6) months for contempt of court (of the) orders issued on 9th February 2024.
3. That the Respondents be committed to civil jail for a period of six (6) months for contempt of court orders issued on 9th February 2024.
4. That cost of this application be provided for.
2. He brought the application under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 40 Rule 3 of the Civil Procedure Rules and Section 28 (1) Of the Contempt of Court Act, 2016 and all other enabling provisions of the law. 
3. It is worth noting that the Contempt of Court Act 2016 was declared unconstitutional vide the Judgment delivered by my learned brother Hon. Chacha Mwita J. on 9th November 2018 in Kenya Human Rights Commission v Attorney General & another [2018] eKLR.  Thus, as things stand, the provisions of the said law do not exist and cannot form the basis of an application or punishment for contempt of court. Simply put, it is said (former) statute is no longer applicable law in Kenya. Learned counsel and all and sundry would do well to appraise themselves of the developments of the law. 
4. Similarly, this Court has time and again stated that the phrase, “all enabling provisions of the law” does not hold any water and should not be “floated” around for the sake of it. On this, the parties herein are referred to the decisions in Barasa v Mireri & 2 others (Environment & Land Case E006 of 2023) [2023] KEELC 20565 (KLR) (12 October 2023) (Ruling); Peter Nakupang Lowar v Nautu Lowar [2022] eKLR; and Nyang’akamar v Tolim (Environment and Land Appeal 11 of 2021) [2023] KEELC 832 (KLR) (15 February 2023) (Ruling).
5. I repeat herein, the phrase is a hollow scarecrow which serious legal practitioners should shun and avoid using. Where did it even originate since it is not supported by any legal provisions in the procedures that exists? Anyway, if there exist such provisions, it would be wise and is obligatory for the party who wishes to apply them cite them and explain their application, save that failure to cite the correct provisions of the law would not ordinarily render the application or pleading fatally defective as Order 51 Rule 10(1) of the Civil Procedure Rules provides. 
6. The grounds of the application were set out in the motion. Briefly, they were that this court issued a temporary injunction on 9th February 2024, restraining the defendants and respondents and/ or their servants and agents from trespassing onto the land, cultivating on, felling (trees). burning, constructing or alienating or otherwise interfering with the plaintiff’s property, known as Suna East/ Area “B” KWA/276, pending the hearing and determination of the application. The order was served on the Respondents – the Respondents herein included the Interested Parties. The Respondents failed and or neglected to comply with the orders of the court. The refusal amounted to contempt of court and therefore warrants the grant of the orders sought, for the court to stamp its authority and uphold its dignity.
7. The application was supported by the Affidavit sworn by the Plaintiff on 27th May 2024. He repeated the content of the grounds in support of the application but in deposition form. He deposed that the application was heard on 6th February 2024 and the orders referred to granted. The order was served on 6th February 2024, 7th February 2024, 12th February 2024 and 13th February 2024. He annexed copies of the Affidavits of Service and marked them MOO1. On 16th February 2024 the Respondents proceeded to the suit property where the Plaintiff's son was cultivating the land, attacked him using blunt weapons and caused him injury. He annexed and marked MOO2 a copy of the Treatment Notes and P3 Form. 
8. His sons George Tony and Hezbon Onditi reported the matter to the Ogwedhi Police Station vide OB No. 15/16/02/2024, in the company of the Plaintiff’s Advocate who also the Office of the Director of Public Prosecutions, Migori but action had never been taken against the offenders. He annexed and marked MOO3 (a) and (b) copies of complaint letters over the issue. 
9. The Advocate appeared before the Court for the hearing of the application and the court directed that the status quo be maintained. It fixed the matter for hearing on 9th May 2024. He annexed and marked MOO 4 a copy of the order issued on 20th February 2024. On 8th May 2024, the OCS Ogwedhi and a team of police officers, upon receiving complaints from the family over the issue of interference with the property, visited the property in the company of the Area Chief, one Silas Owiti and found the 1st and 2nd Respondents had procured the services of the 3rd to 6th ‘Interested Parties’ who were in the process of harvesting sugar cane belonging to the plaintiff. The officers did not take any action and left. He annexed and marked MOO5 (a)-(h) photographs taken on 8th May 2024 on the suit property. 
10. On 9th May 2025, the Respondents and their agents came back to the property at 6:00 AM and attacked the Applicant’s family and the brother’s family. The applicant called the OCS Ogwedhi and the 1st Interested Party but he did not answer the calls. He, the applicant, then called the OCPD Suna East, who directed them to the OCS Ogwedhi Police Station to go and assess the situation and assist the family. He proceeded to the suit property and found only three people and arrested them, including the tractor that was ferrying sugar cane (sic). It was upon that he agreed to record the complaint by OB No. 12/8/5/24 over the issue of trespass. But he alleged that the order was a forgery since the judge who had issued the same had since been suspended. He annexed and marked MOO 6 a copy of the OB dated 9th May 2024.
11. The officer sent the son of the Applicant to the Applicant with a letter to forward to court for verification of the order. The Applicant forwarded it and it was verified by the Deputy Registrar confirmed to him that the order was genuine. He annexed and marked MOO7 copies of the letters. The OCS then released the Applicant’s son, Hezbon Onditi and ultimately the Respondents and their agents and instructed the Applicant comes back to court and cite them for contempt. 
12. The failure by the respondents to obey court orders amounted to contempt of court, hence the Court should grant the orders sought. 
13. The 1st and 2nd Defendants entered appearance on 29th February 2024 through a Memorandum of Appearance dated the same date while the State Law office entered appearance for the 3rd, 4th and 5th Defendants through a Memorandum of Appearance dated 10th June 2024.
14. The application was opposed through the Replying Affidavit sworn by the 1st Defendant/ Respondent on 26th February 2025. He stated that he ordinarily resided in Area “B” KWA Location in Suna East Sub-County. He was aware that the court ordered the maintenance of status quo concerning parcel No. Suna East/ Area “B” KWA/276 pending the hearing of the application inter parties. He was the registered proprietor of parcel number Suna East/Area “B” KWA/723. He annexed and marked as JMM1 a copy of the official search in respect of the parcel he is registered as owner. He had planted sugar cane on the said parcel of land prior to the commencement of the proceedings. There was no order restraining him from carrying on any activity on the land. 
15. He deposed further that he was aware that there had never been planted any sugar cane on the parcel number Suna East/ Area “B” KWA/276 and neither had the plaintiff demonstrated that prior to the issuance of the orders he had planted crops, particularly sugar cane, on the parcel. He added that even the Court Order did not did not mention the issue of sugar cane which issue was being brought up. 
16. Regarding the visit by the OCS Ogwedhi Police Station on the dates alleged, he added that it was curious that no report by the OCS was filed in court detailing the visit and the alleged removal of the crops from the property. There was no indication that the OCS was accompanied by the County Surveyor to point out to him the suit property so that he would determine that indeed the sugar cane was harvested from the suit parcel of land.
17. He deposed further that he had never planted any sugar cane on parcel No. Suna East/ Area “B” KWA/276 nor harvested the same. Further, he was not among the persons allegedly arrested in connection with the harvesting of sugar cane. Neither had any of his agents been arrested. He added the standard of proof of complaints in such quasi-criminal proceedings was higher standard than in ordinary civil proceedings. Further, the orders breached must be clear and unambiguous and should be personally served. He knew of his own knowledge that the orders complained about were never served on him personally. The application had no merits and should be dismissed.
18. The 1st and 2nd Interested Parties opposed the Application through an Affidavit sworn by himself, Henry Kecha, on 10th June 2024 and filed the same date. He deposed to a raft of facts which this Court need not summarize at this stage, and even afterward, for an important reason this Court will give below, at the beginning of the analysis and determination of the application, since to do so would be a waste of precious judicial time. 
19. The Application was disposed of by written submissions. The Applicant filed his dated 26th June 2024. The 1st and 2nd Interested Parties filed theirs dated 18th July 2024.
20. From the outset, this Court indicates, as explained further in paragraphs 49 and 50 below, that there is no interested party in this matter. At no time has the Court ordered that any party be joined as an interested party in the suit, leave alone the ones listed as the 1st to 7th. Thus, the prayers against them are misconceived and a nullity. They are expunged out of the record. Thus, since there is no Interested Party in the matter and or any prayers for such, it means there were no prayers, allegations or claims the 1st and 2nd Interested Parties and indeed the others were required to respond to. Additionally, any response(s) and submissions filed in that behalf is also a misapprehension of the position in fact and law herein obtaining and they are expunged from the record. This is because at no point in time did the 1st and 2nd ‘Interested Parties’ file any Appearance or Appointment to act in person, and they are not expressly excluded by any written law as provided for by Order 9 Rule 1 of the Civil Procedure Rules from doing so. In any event, the Attorney-General filed the Relying Affidavit and submissions alluded to hereinabove without first entering Appearance or a filing a Notice of Appointment of Advocate in that behalf in terms of Order 9 Rule 1 of the Civil Procedure Rules. It means that both sets of papers are a filed by a stranger or strangers and are only good for expunging out of the record.
21. Having stated before that the Applicants cited a non-existent statute as the basis for the application herein, it does not mean that the application is defeated on that technicality. This is because Order 51 Rule 10(1) provides that,
“Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.”
22. In any event Article 159(2)(d) of the Constitution of Kenya 2010 obligates this Court to decide matters on justice based on substance rather than mere technicalities that do not affect the substance. Thus, for the Court to determine whether there was breach of the orders of injunction issued on 06/02/2024 it has to base its decision on the provisions of law that such an issue would hinge on. Whereas Section 5 of the Judicature Act provides for punishment for contempt of Court generally, this Court has been empowered specifically to punish for contempt of Court.
23. Section 5 of the Judicature Act reads as follows;
“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.”
24. As for this Court, punishment for contempt of court is provided for under Section 29 of the ELC Act. The Section provides that,
“....Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”
25. The question that flows from the above is, what constitutes Contempt of Court?
26. The learned author, Bryan Garner in Black’s Law Dictionary, 11th Edition, Thompson Reuters, 2019, p. 397, defines contempt as “…disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or impair the respect due to such a body”.
27. Therefore, any party, whether or not served with a court order as long as it is directed to him or her, is bound to obey it provided that he has knowledge of its existence. Court orders are not issued in vain: they must be obeyed, respected and/or fulfilled. Therefore, many decisions have been rendered in our jurisdiction about obedience of court orders. The reason is that people seem to be intent to test the waters of whether courts can bite in terms of punishment for contempt of court. Thus, in Kenya Human Rights Commission v Attorney General & another [2018] eKLR the Court emphasized as follows:
“Article 159 of the Constitution recognizes the judicial authority of courts and tribunals established under the Constitution. Courts and Tribunals exercise this authority on behalf of the people. The decisions courts make are for and on behalf of the people and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is vital for the preservation of our constitutional democracy. The judiciary acts only in accordance with the Constitution and the law (Article 160) and exercises its judicial authority through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become effective in the discharge of their constitutional mandate.”
28. In the neighborhood, in South Africa, Nkabinde, J in Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another CCT 19/11(75/2015) observed that:-
“The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”
29. Further, in the West, in Canada, the Court was more emphatic that any other in other jurisdictions. It did so in the case of Canadian Metal Co. Ltd v Canadian Broadcasting Corp (N0.2) [1975] 48 D.LR (30), where it stated that:
“To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to correct… wrong can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.”
30. It goes without saying that courts therefore punish for contempt to assure compliance with orders they issue, bring civil order, dignity and honour to both the institution and law, and insulate the court processes for purposes of future observance of the rule of law and administration of justice. Without this power or to have instances where it is limited or diminished, the court is left helpless and its decisions would mean nothing. It would make a mockery of the power the people have bestowed on the trusted institution. This would ultimately erode public confidence in the courts; endanger the rule of law, the administration of justice and more importantly, development of a cohesive and civil society. That is why the court stated in Carey v Laiken [2015] SCC 17 that;
“Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”
31. That being firmly established, I state further that the court has a duty to commit that individual for contempt of its orders where he deliberately fails to carry out such orders. Reference is made to the case of Louis Ezekiel Hart v Chief George 1 Ezekiel Hart (-SC 52/2983 2nd February 1990). Also, in Hon. Martin Nyaga Wambora and another v Justus Kariuki Mate & another [2014] eKLR, the Court stated the duty to obey the law by all individuals and institutions is cardinal in the maintenance of rule law and administration of justice.
32. Therefore, in Wamalwa v Ekirapa (Environment and Land Miscellaneous Application 2 of 2022) [2023] KEELC 16129 (KLR) (13 March 2023) (Ruling), this Court held as follows;
“It is therefore clear that the importance of the judiciary in the maintenance of constitutional democracy cannot be overemphasized. In order to achieve this constitutional mandate, the judiciary requires the power to enforce its decisions and punish those who disobey, disrespect or violate its processes otherwise courts will have no other means of ensuring that the public benefit from the judgments they hand down and the orders and or directions made on their behalf. When stripped of this power courts will be unable to guarantee compliance with their processes and will certainly become ineffective in the discharge of their duties and performance of their functions with the ultimate result that the public, as trustees of the rule of law, will be the major victim.”
33. Having said that, this Court recalls that in its previous ruling delivered in Wamalwa v Ekirapa (Environment and Land Miscellaneous Application 2 of 2022) [2022] KEELC 13267 (KLR) (5 October 2022) (Ruling) it held that:
“In order for one to be found guilty of the Contempt of Court, four (4) elements must be proved. There must have been:
(a) a valid order of the Court.
(b) the order must have been served or been constructively in the knowledge of the alleged contemnor.
(c) there must be an action or actions of a contemnor contrary to the order.
(d) the actions of the contemnor in violation must be deliberate.”
34. Moreover, the Court of Appeal in Michael Sistu Mwaura Kamau v DPP & 4 others (2018) eKLR, stated as follows:
“It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court in Republic v Ahmad Abolfathi Mohammed & another (supra). Secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in A.B. & another v R. B. [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v Baharini Farm (supra) and Republic v Ahmad Abolfathi Mohammed & another (supra)”.
35. Similarly, in Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR, the Court emphasized as follows:
“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 notice 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”.
36. This Court now turns to the merits or otherwise of the instant application. When the instant application was filed and placed before the learned judge under certificate of urgency on 27th of May 2024, he did not certify it urgent. He directed that it be served on all the Respondents and Interested Parties within ten (10) days. He fixed it for further directions on 11th June 2024. When it came up on the latter date the judge directed further that the Applicant files and serves a Further Affidavit together with the written submissions within fourteen (14) days and the application be heard by way of written submissions. Both the Respondents and Interested Parties were to file their written submissions within 14 days from the date of service of the applicant’s. The application was fixed for further mention on 24th July 2024. On that date, the court did not sit hence the Deputy Registrar fixed the application for further directions on 26th of September 2024. 
37. On 26th September 2024 learned counsel for the applicant informed the court that they had filed their written submissions but had not been served with the Respondents’. On their part counsel for the 1st and 2nd Respondents informed the court that they had filed their submissions on 24th July 2024 but had received Further written submissions the previous day, hence they were considering filing further submissions. The court directed that the plaintiff’s counsel serves or once serves the pleadings within three (3) days from the date of the order.  The court then set the ruling on the Application on 21st November 2024. 
38. Come 21st November 2024, learned counsel for the 1st and 2nd Defendants informed the court that there was no appropriate response to the application because counsel who held brief did not notify him of the Court’s directions until he saw them in the Case Tracking System (CTS). Thus, since the order sought was drastic he needed more time to file and save the Response and submissions.
39. Upon the court hearing counsel, it directed that the defendants Respondents and Interested Parties do file submissions within 14 days from that date. It deferred the ruling. It fixed the matter for mention on 24th February 2025 for compliance and fixing a date for ruling.
40. On 24th February 2025 learned counsel for the 3rd to 5th Defendants intimated to court that although it had directed that they be served with pleadings that had not been done. Counsel for the plaintiff undertook to serve the pleadings within two (2) days from that date. On his part learned counsel for the 1st and 2nd Defendants indicated to court that he was not sure whether he had filed his written submissions because the copy that he had in his file did not bear the court stamp. The court directed that he files and serves the submissions before the close of business the following day. It fixed the Application for ruling on 11th March 2025. 
41. The record bears that on 27th February 2025, the 1st and 2nd Defendants filed a Replying Affidavit sworn by the 1st defendant on 26th February 2025. Its contents have been summarized above, in paragraphs 14-17. But summarizing them does not mean that they must be considered in the determination herein.
42. The reason why they Court has gone into great lengths to reproduce the record as in paragraphs 10 to 15 above is for all the parties and sundry to clearly read and understand the record as it is so that they can get or know the reason why the Replying Affidavit filed by the 1st and 2nd Defendants is to be struck out. 
43. Clearly from the record the 1st and 2nd Defendants were given time and leave to file a response to the application as per the directions. But they did not do so within the time given. Instead, they purported to do so on 27 February 2025. This they did without seeking leave of court for it. It goes without saying that the law does not envisage the court placing reliance on a document filed without leave thereof or illegally so to say. Such a document is a nullity and cannot found a claim, defense or opposition to any allegation respectively.
44. In the case of Nicholas Kiptoo arap Salat the Supreme Court held that documents filed without leave of the court are a nullity in law. Even the seeking of leave to validate them cannot salvage the situation or validate them. The said apex Court held;
“However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.
By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.
To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court.”
45. Since it is no longer in doubt that the Respondent filed the Replying Affidavit by the 1st Respondent on his behalf and that of the 2nd Respondent herein without leave of the Court, it is a nullity. This Court therefore hereby strikes it out. That being the case, it means that all the facts deposed to by the Applicant are uncontroverted. This is the position of the law. Courts have stated as much before. For instance, in Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another [2016] eKLR the Court stated
“As stated earlier the Respondents did not file any Replying Affidavit to challenge and/or controvert the sworn averment by the Petitioners that they were victims of the post-election violence. Ground of Opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath.
46. Also in Kennedy Otieno Odiyo & 12 Others v. Kenya Electricity Generating Company Limited [2010] eKLR the court held:-
“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant’’.
47. The position in law then is that affidavits speak to facts in relation to an issue. They are on oath. Since oaths are sacred, solemn and taken for truth, any facts deposed to in affidavits are ordinarily taken as truth unless controverted or impugned by other ways such as cross-examination and that challenge proves that indeed they were untruths or shaky. Truth can only be cancelled by another truth but there is only one truth in the universe as was designed by and flows from the One and only Truth. Therefore, facts contained in an Affidavit can only be cancelled by another set of facts by way of an Affidavit, or oath taken in response to such. Without the latter, all that the former contains is unchallenged and basically admitted.  
48. Thus, with the facts about the instant application being settled as above this Court finds that indeed it (the application) is merited and is for allowing, only as against the 1st and 2nd Defendants but not against the 3rd, 4th and 5th Defendants or the Interested Parties (sic). The reason why the prayers sought cannot be granted against the 3rd, 4th and 5th Defendants is that none of the grounds in support of the application nor the facts deposed to in the Supporting Affidavit allude to the fact that the said three Defendants or their agents and or employees were served with the orders and disobeyed them in any way or in the manner alleged by the Plaintiff. 
49. Similarly, regarding the prayers against the Interested Parties (sic), the prayers cannot stand for the simple reason that this suit was initially instituted against the 1st to 5th Defendants only. At no time has the Plaintiff or any other party(ies) sought leave to join the parties listed as Interested Parties in it. No order to join such individuals has ever been granted. As the case is at this point, there are no Interested Parties in this matter. The orders sought in the application against the said Interested Parties (sic) are sought against strangers in this suit. They must fail. The orders of the status quo were neither directed to the said parties nor demonstrated to have been served on them. 
50. In my humble view, the frustration of the Plaintiff in the hands of police officers to whom he reported time and again about the violations of the orders referred to and they did not act may have led him to perceive and imagine that they had an interest in the alleged violations and thereby condoned them. Additionally, the fact that the 3rd to 7th individuals may have been seen harvesting or taking part in the alleged acts of violation of the orders of the court may have made him think of them having an interest in the suit property they were, as he deposed, contracted by the 1st and 2nd Defendants. Thus, they were agents of the said parties if the facts he deposed to are true: after all they are uncontroverted. That would be akin to taking the actions of the said ‘Interested Parties’ literary.  
51. Even if the Court were to be wrong in its finding that the application stands not opposed, and decided to rely on the 1st and 2nd Defendants’ Replying Affidavit, it is clear from the depositions therein that the said Respondents do not dispute having harvested or instructed for the harvesting of the sugarcane alleged to have been so harvested. They actually admit to the fact; they indirectly admit to the fact that there exists uncertainty as to where the sugarcane they harvested from the disputed area was growing, or confusion as to which portion of the land the Plaintiff ought to complain about hence the need for a surveyor to have been on the alleged disputed section when the police visited it so as to confirm that indeed it was parcel No. either 276 or 723.
52. The two Defendants allege that the sugar cane they harvested was that which they planted on parcel No. Suna East/ Area “B” KWA/723. Further, that the 1st Defendant had never planted or harvested sugar cane from parcel number Suna East/ Area “B”/276. But he went on to add in paragraph 12 of the Affidavit that the Applicant had not indicated that the OCS was accompanied by a surveyor to point out to him the suit property to determine that the sugarcane was harvested from it. This to me is approbating and reprobating on oath. It shows that even the Respondent did not know the boundaries of the parcel he alleges to have planted sugar cane on were or reached. It further means that he harvested sugarcane from the parcel which the Plaintiff complained about and instituted the instant suit over hence violated the order of injunction. He should not have harvested the sugarcane without ascertaining that it was not on the parcel of land the Court issued orders of injunction on 06/02/2024. The 1st and 2nd Respondents may as well want to argue that no orders were issued on 09/02/2024. In my humble view the date written in the application is a typographical error which related to the orders issued on 06/02/2024. To deny the application on that error would be to defeat justice on a mere technicality, which the Article 159(2)(d) of the Constitution does not envision. The substance of the application is that there was an order of injunction, it is alleged to have been disobeyed by the 1st and 2nd Respondents, and the court has found as much.
53. The 1st and 2nd Respondents are found guilty of contempt of Court and I convict them accordingly. They are hereby ordered to attend Court in person on 18th March 2025 at 08:30 AM for mitigation and sentencing.
54. Orders accordingly.