1. The application dated 28/5/2023 has been placed before this court for determination. The application seeks orders of committal or fine against Kassim Abdalla Mohamed and Duncan Mukua a contractor. In the application it is alleged that Kassim contracted Duncan to erect a perimeter wall on one edge of the suit property in blatant disregard of court orders issued on 7/11/2023. Duncan was shown a copy of the court order but he ignored the same. a photograph showing alleged construction of a wall on the property was attached.
2. Kassim filed a replying affidavit dated 4/6/2024 stating that he was deliberately omitted as a party to facilitate grabbing of his land by the plaintiffs; that he reported to the police and a structure built on his land was removed, he alleged that the one of the plaintiffs had sold the land to third parties not joined to this suit but who filed their own claim at Kilifi. In summary, Kassim is asserting in his reply that he is only protecting his land. On his part Duncan Mukua responded through an affidavit dated 4/6/2024 and denied service of the order injunction on him, and further stated that he is a caretaker of plots that Kassim owns and that his only duty is to protect the land from invaders. Without giving dates he asserts that the house belonging to Gideon Matongo and Wasike Simiyu which had been erected on the suit land was demolished with the help of the police.
3. In a supplementary affidavit dated 13/6/24 Robinson Malombo the advocate for the plaintiffs denied that he and some of the plaintiffs sold a portion of Kassim’s land.
4. I have considered the application at hand. Civil contempt is provided for under Section 5(1) of the Judicature Act as follows:
“5.(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 that power shall extend to upholding the authority and dignity of Subordinate Courts.”
5. This court as a court of equal status under the Constitution has power to punish for contempt. The principles governing applications for committal for contempt of court are well established: there must be an order, the alleged contemnor must have knowledge of the order and he must be found by this court to be in wilful disobedience of that order for him to be committed for contempt. It is not in doubt that this court has jurisdiction to punish a party for contempt of court. In the case of Woburn Estate Limited v Margaret Bashforth [2016] eKLR it was stated as follows:
“The jurisdiction of the High Court (or any other court for that matter) to punish for the violation of its orders cannot be in question. Apart from section 5 (1) of the Judicature Act that vests in the High Court the power, like those of the High Court of Justice in England, to punish any party who violates its orders, the court, by virtue only of being a court has inherent powers to make sure its process is not abused and its authority and dignity is upheld at all times. See Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another, Civil Application No.39 of 1990, where it was observed.
“A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question……he should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.””
6. There is an order maintaining status quo on the suit land. the question that arises is whether the respondents are aware of and have violated that order. The same order alleged to have been disobeyed is the one that has a limb joining Kassim as a party in these proceedings. In his replying affidavit Kassim was aware that he was joined to the suit. He could not be said to have been aware of one limb of the order and be oblivious of the other. Duncan, though not a party is his agent. He is said to have been served with the order. Kassim has not denied knowledge of the said order or the interference with the suit land through the building of a wall. Duncan has. However, there is a clear averment in the sworn supporting affidavit attached to the motion, and which I believe to be true, to the effect that Duncan was shown the order. It is important that agents of principals learn to obey court orders, that they first verify the orders do not affect them before proceeding with court-prohibited activities. He was therefore aware of the order even as he continued with the construction of the wall. In Rose Nafuna Wanyama v Nusra Nasambu Chibanga & another [2019] eKLR it was held as follows:
As a Court we do not take contempt of court orders lightly as they undermine the authority and dignity of the Courts. The reason behind contempt of Court proceedings is to ensure compliance of Court orders by the members of the public and any other entity that such orders are directed at. The principle was captured by this Court in the case of Fred Matiang’i, the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR; thus: -
“When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.”
7. The reason for the prohibition of interference with the suit land by any person was to prevent the change of status that may have wider implications in the case, including attracting more parties in the suit. No development of the land was exempted by the order dated 7/11/2023, including the construction of any wall by the respondents. That construction is contrary to this court’s orders dated 7/11/2023. Those orders were to bind the plaintiffs as well as the defendants, otherwise chaos will reign on the ground and the court may, instead of dealing with the original dispute, may be engaged in other less satisfying and time and resource-consuming pursuits like punishment for contempt as is the case in this application. I doubt that is what the parties have come to this court for, but since there is clear disobedience this court must act on it.
8. This court is aware that the respondents claim the land to be theirs, but in view of the fact that there is a case before court and an order maintaining the status quo, the defence raised in sworn affidavits stating that they were merely protecting their property is irrelevant. It is for every law abiding citizen to bring to the attention of the court the act of disobedience of a court order by another party and not to act in self-help while the court is there to punish on that violation otherwise there is no need for court proceedings. It is time all the parties in this case obeyed court orders and unless this court acts firmly, it will be impossible to proceed with the substantive hearing of the main suit.
9. The conclusion reached by this court is that the respondents Kassim Abdalla Mohamed and Duncan Mukua are hereby found guilty of contempt of court. They shall appear before this court physically for mitigation and sentencing on 18/2/2025 10:30 am. The contemnors shall also bear the costs of the application.
2. Kassim filed a replying affidavit dated 4/6/2024 stating that he was deliberately omitted as a party to facilitate grabbing of his land by the plaintiffs; that he reported to the police and a structure built on his land was removed, he alleged that the one of the plaintiffs had sold the land to third parties not joined to this suit but who filed their own claim at Kilifi. In summary, Kassim is asserting in his reply that he is only protecting his land. On his part Duncan Mukua responded through an affidavit dated 4/6/2024 and denied service of the order injunction on him, and further stated that he is a caretaker of plots that Kassim owns and that his only duty is to protect the land from invaders. Without giving dates he asserts that the house belonging to Gideon Matongo and Wasike Simiyu which had been erected on the suit land was demolished with the help of the police.
3. In a supplementary affidavit dated 13/6/24 Robinson Malombo the advocate for the plaintiffs denied that he and some of the plaintiffs sold a portion of Kassim’s land.
4. I have considered the application at hand. Civil contempt is provided for under Section 5(1) of the Judicature Act as follows:
“5.(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 that power shall extend to upholding the authority and dignity of Subordinate Courts.”
5. This court as a court of equal status under the Constitution has power to punish for contempt. The principles governing applications for committal for contempt of court are well established: there must be an order, the alleged contemnor must have knowledge of the order and he must be found by this court to be in wilful disobedience of that order for him to be committed for contempt. It is not in doubt that this court has jurisdiction to punish a party for contempt of court. In the case of Woburn Estate Limited v Margaret Bashforth [2016] eKLR it was stated as follows:
“The jurisdiction of the High Court (or any other court for that matter) to punish for the violation of its orders cannot be in question. Apart from section 5 (1) of the Judicature Act that vests in the High Court the power, like those of the High Court of Justice in England, to punish any party who violates its orders, the court, by virtue only of being a court has inherent powers to make sure its process is not abused and its authority and dignity is upheld at all times. See Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another, Civil Application No.39 of 1990, where it was observed.
“A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question……he should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.””
6. There is an order maintaining status quo on the suit land. the question that arises is whether the respondents are aware of and have violated that order. The same order alleged to have been disobeyed is the one that has a limb joining Kassim as a party in these proceedings. In his replying affidavit Kassim was aware that he was joined to the suit. He could not be said to have been aware of one limb of the order and be oblivious of the other. Duncan, though not a party is his agent. He is said to have been served with the order. Kassim has not denied knowledge of the said order or the interference with the suit land through the building of a wall. Duncan has. However, there is a clear averment in the sworn supporting affidavit attached to the motion, and which I believe to be true, to the effect that Duncan was shown the order. It is important that agents of principals learn to obey court orders, that they first verify the orders do not affect them before proceeding with court-prohibited activities. He was therefore aware of the order even as he continued with the construction of the wall. In Rose Nafuna Wanyama v Nusra Nasambu Chibanga & another [2019] eKLR it was held as follows:
As a Court we do not take contempt of court orders lightly as they undermine the authority and dignity of the Courts. The reason behind contempt of Court proceedings is to ensure compliance of Court orders by the members of the public and any other entity that such orders are directed at. The principle was captured by this Court in the case of Fred Matiang’i, the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR; thus: -
“When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.”
7. The reason for the prohibition of interference with the suit land by any person was to prevent the change of status that may have wider implications in the case, including attracting more parties in the suit. No development of the land was exempted by the order dated 7/11/2023, including the construction of any wall by the respondents. That construction is contrary to this court’s orders dated 7/11/2023. Those orders were to bind the plaintiffs as well as the defendants, otherwise chaos will reign on the ground and the court may, instead of dealing with the original dispute, may be engaged in other less satisfying and time and resource-consuming pursuits like punishment for contempt as is the case in this application. I doubt that is what the parties have come to this court for, but since there is clear disobedience this court must act on it.
8. This court is aware that the respondents claim the land to be theirs, but in view of the fact that there is a case before court and an order maintaining the status quo, the defence raised in sworn affidavits stating that they were merely protecting their property is irrelevant. It is for every law abiding citizen to bring to the attention of the court the act of disobedience of a court order by another party and not to act in self-help while the court is there to punish on that violation otherwise there is no need for court proceedings. It is time all the parties in this case obeyed court orders and unless this court acts firmly, it will be impossible to proceed with the substantive hearing of the main suit.
9. The conclusion reached by this court is that the respondents Kassim Abdalla Mohamed and Duncan Mukua are hereby found guilty of contempt of court. They shall appear before this court physically for mitigation and sentencing on 18/2/2025 10:30 am. The contemnors shall also bear the costs of the application.