RULING ON SENTENCE
1. On 30th November 2023, this court found Elias Cheboi and Joan Jepkosgei Cheboswony, hereinafter jointly and severally referred as the contemnors to be guilty of contempt of court.
2. Before deciding on what sentence to mete on the contemnors, this court required the contemnors to appear before it and show cause why they should not be punished for willful disobedience of the orders of the court in question.
3. On 20th December 2023, the contemnors expressed willingness to purge the contempt by restoring the fence that was removed and by blocking the access road which resulted in their being cited for contempt of court.
4. This court acceded to the contemnors request and gave them thirty days to purge the contempt by restoring the fence and blocking the access road as requested.
5. On account of what the contemnors call frustration by members of the public, the contemnors did not purge the contempt either within the time ordered by the court and at all.
6. In a bid to facilitate the contemnors purge their contempt, this court ordered the officer commanding station (OCS) Kapcherop Police Station, to provide security during the exercise of restoring the fence that had been destroyed and blocking the access road.
7. Whereas in their plea for mercy/mitigation, the contemnors maintain that they were prevented by members of the public from purging the contempt, according to the account given by the OCS, after the court ordered him to appear before it and explain why the planned activities were not carried out, he stated that there was political interference. That notwithstanding, the OCS informed the court that if his team had received full cooperation from the respondent and the contemnors, the exercise would have been completed.
8. I have considered the circumstances that led to citing of the contemnors for contempt, the conduct of the contemnors after they were found guilty of contempt of the court and the explanation offered by the contemnors as to why they were unable to purge the contempt despite having been accorded an opportunity by the court to do so. I have also considered the explanation offered by the OCS, the role the contemnors’ employer, the County Government of Elgeyo Marakwet was expected to play in helping and/or facilitating the contemnors to purge their contempt and the representations and/or submissions by the counsel for the petitioners and the contemnors concerning the appropriate order to make in the circumstances of this case.
9. There cannot be any doubt that contempt of court is a serious offence. The seriousness of the offence as it relates to orders issued by this court is underpinned by the provisions of Section 29 of the Land and Environment Court, which provides as follows:-
“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 both.”
10. In the case of Richard Otieno & 9 Others v. Michael Otieno Wagude & Another (2022) e KLR, the court committed the contemnors to civil jail for a period of 30 days or in the alternative a fine of Kenya Shillings Fifty Thousand (50,000) each.
11. In the case of Joseph Muthiani Kivindu & Another V. Fredrick Mwaniki Musau & 4 Others, Machakos ELC Case No.97 of 2015, Angote J, ordered the contemnor to pay a fine of Kshs. 2,000,000/- and in default to serve a jail sentence of 30 days.
12. Having taken into account all the relevant factors, the mitigation offered by the contemnors and the need to protect the dignity and the authority of the court, in the circumstances of this case, I order each of the contemnors to pay a fine of Kshs. 150,000/- and in default to serve 30 days in civil jail.
13. On whether this court should order the contemnors to compensate the petitioners for the damage/loss caused to him on account of the contemnors unlawful conduct, because the issue of compensation of the petitioner for the loss caused is yet to be heard and determined on its merit, I order that the same shall be considered and determined in the petition.
14. Orders accordingly.
Dated, signed and delivered at Iten this 25th day of September, 2024.
Ruling delivered in open court in the presence of:-
Ms. Kiptum holding brief for Mr. Gikandi for the Petitioners
Mr. Wafula for the Respondent
Elias Cheboi – 1st Contemnor
Joan Jepkosgei Cheboswony – 2nd Contemnor
Court Assistant: Alex