ON SENTENCING
1. This ruling is delivered following the finding of contempt of court against Mr. Michael Kinuthia, the Sub-County Surveyor, Mbeere (acting for and on behalf of the 1st Respondent), for willful disobedience of the mandamus orders issued by this Court on 22nd October 2020. The said orders directed the 1st and 2nd Respondents to discharge their statutory duties under Section 29 of the Land Adjudication Act (Cap. 284) by implementing the Minister’s decision in Appeal Case No. 153 of 1996.
2. The contempt application dated 10th August 2021 having been heard inter-partes, the Court found the disobedience established and set the matter down for mitigation and sentencing on 17th February 2026.
3. In mitigation, Mr. Kinuthia submitted that on 5th March 2024, a joint team of surveyors from the Land Adjudication and Settlement offices and the County Surveyor, Mbeere South Sub-County, conducted a ground visit to the suit land. A detailed report, supported by photographs, was prepared and filed in Court. The report documented that the disputed land is occupied by third parties undertaking extensive agro-economic activities, including the planting and harvesting of “Mukukaa” tea bushes and the use of irrigation pipes for watering the crops.
4. Mr. Kinuthia explained that due to the presence and activities of these third parties—who appeared unaware of the intended survey—the team could not safely or effectively proceed with the demarcation and survey exercise. He expressed the need for judicial guidance on the manner of conducting the survey in the face of such occupation, as well as the provision of adequate security to avoid potential conflict.
5. Having carefully considered the mitigation, the annexed report and photographs, and the submissions of both parties, the Court makes the following findings:
a. The visit and report constitute a tangible step towards compliance and demonstrate that the 1st Respondent has not remained entirely inactive since the orders of 22nd October 2020.
b. The documented presence of third-party occupation with established agro-economic developments presents a genuine practical impediment to the immediate execution of the survey.
c. While the delay between the date of the orders and the site visit is regrettable and reflects insufficient urgency, the explanation tendered is not one of outright defiance or bad faith, but rather one of encountering unforeseen field-level challenges that require additional facilitation (security and procedural clarity).
d. These circumstances amount to partial good faith compliance and provide substantial mitigation.
6. Following the declaration of the Contempt of Court Act, No. 46 of 2016 as unconstitutional and invalid in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR for lack of public participation under Articles 10 and 118(b) of the Constitution and for encroaching on judicial independence, the law on contempt of court in Kenya reverts to common law principles. Pursuant to Section 5 of the Judicature Act (Cap. 8), superior courts, including this Court, have inherent jurisdiction to punish contempt in like manner as the High Court of Justice in England.
7. Civil contempt, as in this case, entails willful disobedience of a court order, and the primary objective of sanctions is coercive and remedial—to secure compliance—rather than purely punitive (see Republic v Ahmad Abolfathi Mohammed & Another [2018] eKLR; Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2013] eKLR). Where genuine efforts have been made and practical difficulties are shown, courts have discretion to impose fines, committal to prison, or suspended sentences conditional on purging the contempt.
8. This approach is consistent with common law tradition and aligns with practices in comparative jurisdictions (e.g., Anil Ratan Sarkar v Hirak Ghosh (2002) 4 SCC 21 (India); UK civil contempt cases favouring suspension where good faith is demonstrated).
Sentence
9. In the exercise of its inherent jurisdiction and taking into account the mitigation advanced, this Honourable Court hereby sentences Mr. Michael Kinuthia as follows:
a. Imprisonment for a term of three (3) months in civil jail.
b. The aforesaid sentence of imprisonment is suspended for a period of twelve (12) months from the date of this ruling, on condition that:
i.The 1st and 2nd Respondents shall, within ninety (90) days from today, complete the survey and demarcation of the suit land in accordance with the Minister’s decision in Appeal Case No. 153 of 1996 and the orders of 22nd October 2020;
ii. The Respondents shall coordinate with relevant security agencies and/or seek appropriate Court directions if third-party occupation continues to impede execution;
iii. A comprehensive compliance report, together with the final survey plan/map and minutes of any stakeholder engagements, shall be filed in Court within the said ninety (90) days.
10. Should the Respondents fully comply with the above conditions within the stipulated time, the sentence of imprisonment shall stand discharged and shall not take effect.
11. In default of compliance within the ninety (90) days, or in the event of any further willful disobedience, the suspension shall be lifted upon application by the Ex-parte Applicant, and Mr. Michael Kinuthia shall forthwith serve the three-month term of imprisonment.
12. In addition, the 1st Respondent shall pay the costs of this application, which are assessed at KSh 20,000 (twenty Thousand Kenya Shillings only), payable within thirty (30) days.
13. Liberty is granted to either party to apply for further directions or variation of these orders should circumstances materially change.
DATED, SIGNED AND DELIVERED AT EMBU THIS 23RD DAY OF FEBRUARY 2026.
E.C CERONO
ELC JUDGE
In the presence of;
1. M/S Rose Njeru for the Ex-parte Applicant.
2. Mr. kiongo for the contemnor
3. Diana C/A
| 2 |