NAOMI CHEPKORIR LANGAT (SUING IN HER CAPACITY AS THE ADMINISTRATOR OF THE ESTATE OF JOEL KIMETET ARAP LANGAT- DECEASED) VS State Law AND AGNES CHEBET NGETICH AND 1 Others

Naomi Chepkorir Langat (hereinafter referred to as the applicant ) has come to this court vide an application dated 2nd August 2024 seeking orders that Agnes Chebet Ngetich be found in contempt of court for wilfully disobeying the status quo orders issued by this Honorable Court on 16th November 2023 and that Agnes Chebet Ngetich be committed to civil jail or otherwise penalized for contempt of court. Costs of this application be provided for. The application is based on grounds that on 16th November 2023, this Honorable Court issued orders for maintaining the status quo concerning the suit property, specifically to preserve the property and prevent any interference thereof. Although the court granted the Respondents an order to continue utilizing the land, it further indicated. that the Respondents should not cause any wastage or destruction thereof. Agnes Chebet Ngetich's lawyers were present during the delivery of the court's ruling and, therefore, there was no need for formal service of the Agnes Chebet Ngetich is well aware of the directions of the court. Despite being aware of the court orders, Agnes Chebet Ngetich has wilfully and deliberately disobeyed them by engaging in massive destruction of the suit property, including cutting down trees, thereby altering the status quo and causing wastage.The actions of Agnes Chebet Ngetich are causing. irreparable harm and are in direct contravention of the court orders, constituting contempt of court.

The applicant states that the  instant suit is scheduled for hearing on 15th October 2024 (the suit has been heard and is pending judgment on the 28th November2024), however, the ongoing destruction of the suit property necessitates urgent intervention to prevent further irreversible damage before the hearing. The Applicant stands to suffer substantial and irreversible damage as Agnes Chebet Ngetich continues to disregard the court orders and degrades the suit property. It is just an equitable that the orders sought herein be granted. The matter is urgent; and it is in the interest of justice that the application be heard urgently to prevent further massive destruction to the property.
The application is supported by the affidavit of Naomi Chepkorir Langat who in a nutshell states that the 1st respondent cut down trees on the suit property in breach of the court order. The applicant has annexed photographs of the allegedly cut trees.
In reply the 1st defendant /respondent states that the application is frivolous and baseless and that it is not true as alleged in paragraph 4 of the plaintiffs/applicant’s supporting affidavit that she has failed to obey court orders by unlawfully engaging in massive destruction on the suit property, including but not limited to cutting down trees on multiple occasions. The plaintiff/applicant has not provided any proof that it is indeed  the respondent who has engaged in massive destruction of the suit property. That it is principle in law that whoever lays a claim before the court against another has the burden to prove it. The photograph annexed by the applicant do not show that it is indeed the defendant who cut down the trees.
I have considered the submission on record and restate that the principle of contempt is well established in law. In Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 it was held that- 

“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…… it must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and  which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” 

In this case, the court issued an order that the status quo on the ground and the registry at the Land Office in respect of the suit property to be maintained and the respondent was restrained from engaging in any act of wastage on the land. The applicant has not demonstrated as required in law that the respondent has engaged in any act of wastage on the land. The respondent was allowed by this court to utilize the land without wastage. Cutting the trees per se is not wastage of the land. Acts of wastage of the land would include scooping soil for sale, quarrying or using the same  for making bricks and such like activities. I do find that the applicant has not proved to the required standards for the court to convict the 1st defendant for contempt of court. The application is dismissed with no orders as to costs. However, in the interest of justice and as the matter is pending judgment, I do restrain the parties herein especially 1st respondent  because she is is in possession, from cutting down the trees on the suit parcel until further orders or determination of the case.