M’Liria v Land Adjudication Ocer, Amungenti “A” Ajudication & Settlement Section & 2 others (Constitutional Petition E003 of 2021) [2022] KEELC 13522 (KLR) (5 October 2022) (Ruling) Neutral citation: [2022] KEELC 13522 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU CONSTITUTIONAL PETITION E003 OF 2021 CK NZILI, J OCTOBER 5, 2022 BETWEEN DAVID MUINDI M’LIRIA .................................................................... PETITIONER AND LAND ADJUDICATION OFFICER, AMUNGENTI “A” AJUDICATION & SETTLEMENT SECTION ............................................................. 1ST RESPONDENT CHIEF KABULINE LOCATION ................................................. 2ND RESPONDENT HON. ATTORNEY GENERAL ................................................... 3RD RESPONDENT RULING 1. This court by a ruling dated April 27, 2022 found the 2nd and 3rd respondents (hereinafter the citees) guilty of contempt of court and directed them to mitigate before the sentencing. Both citees led mitigating statements under oath sworn on May 6, 2022. 2. Further to this, Mr Kieti the senior litigation counsel on record for the respondents orally submitted and adopted the mitigation statements whose gist was that the citees were remorseful for the unbecoming conduct, are civil servants with families who depend on them and above all, were rst oenders willing to reform and or comply with the court orders. 3. Mr Kiruai counsel on record for the applicant submitted that even though damage was done to the suit property, despite the mitigation, his client had received no apology from the citees, the access road continues to be used and the only remedy under the circumstances was to have the access road closed to revert to its original position. Further, it was submitted that no oer for the compensation for the damage had been made to the petitioner as the petition has still pending determination. 4. In Woburn Estate Ltd v Margaret Bashforth (2016) eKLR the court held that under sections 29 of the Environment and Land Court Act 35 and 36 the High Court (Organization and Administration) Act https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13522/eng@2022-10-05 1
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as read together with section 63 (e) of the Civil Procedure Act and section 5 of the Judicature Act and order 40 rule 3 of the Civil Procedure Rules, the court has powers to punish for contempt of court. 5. The consequences of nding a party in contempt of court is either to impose a ne, give a custodial sentence or both. The court has also the discretion to direct that the contemnors to take a positive action to purge the contempt. See Miguna v ODPP cite and 2 others (2018) eKLR and in Eliud Muturi Mwangi (P/a Muturi & Co advocates) v LSG Buthansa services Europa Africa GMBH & another (2015) eKLR. 6. Applying the above principles and given the circumstances of this petition, I order that the contemnors do purge the contempt of court by rexing the access road in line with the demarcation maps to its designated position and to the satisfaction of the petitioner. Costs for the restoration of the fence shall be met by the contemnors upon assessment by a qualied expert. Orders accordingly. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 5TH DAY OF OCTOBER, 2022. In presence of: C/A: Kananu Kieti for 1st & 2nd contemnors Mr. Muthomi Njeru for petitioners HON. C.K. NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13522/eng@2022-10-05 2
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