Kithae v Tana Water Works Development Agency & another (Environment and Land Miscellaneous Application E005 of 2026) [2026] KEELC 5244 (KLR)

failing to comply with the orders of the Land Acquisition Tribunal c) issued on 15th May 2025; d) The contemnor be committed to civil jail for a period of six months for having willfully disobeyed and contemned the orders of the land acquisition tribunal in its judgement dated 15 th May 2025 e) That in the alternative, the Applicant be allowed to undertake a private valuation of the orders and disturbed land and; f) The court to grant directions as may any be such appropriate in the by the circumstances. g) Costs of the application be borne contemnor 2. The application was brought under Articles 165(3) and 162(2) (b) of the Constitution of Kenya, 2010, Section 13 of the ELC MISC NO. E005 OF 2026 – RULING Page 2

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Environment and Land Court Act, Section 5 of the Judicature Act and other enabling provisions of the law whilst premised on the grounds outlined and the averments deponed in his affidavit dated 22nd April 2026. 3. Upon service, no response was filed. The court directed the applicant to file brief submissions on whether or not this court, can issue the orders sought by the applicant. 4. Indeed, through the firm of Okemwa and Company advocates, submissions dated 2nd July 2026 were filed for and on behalf of the applicant. The case of the applicant is that, he is the registered proprietor of parcel Mwimbi/Chogoria/1392 located in Chogoria within Tharaka Nithi County. 5. The applicant contends that on 15th May 2025, the Land Acquisition Tribunal rendered a judgement in TRLAP E042 of 2024 in his favor. The applicant further contends that the 1st respondent was ordered to facilitate the 2nd respondent to conduct a valuation of his property within 30 days from the date of the judgement and compensate him within 15 days of the valuation. He adds that the said decision of the tribunal was delivered in the presence of counsel of all the parties. ELC MISC NO. E005 OF 2026 – RULING Page 3

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6. The applicant adds that the 1st respondent was further served with a decree on 25th September 2025. He states that vide a letter dated 27th October 2025, he issued a reminder to the respondents to comply with the orders of the tribunal issued in the said judgement and decree. The applicant further states that the 1st respondent deliberately failed to comply with the said orders of the tribunal and has made no attempts to undertake the valuation of the disturbed portion of his land and compensate him. It is his case that the continued contempt by the 1 st respondent will result in irreversible changes to the landscape by natural processes, thus violating his constitutional rights to the detriment of his enjoyment of the fruits of his judgement. 7. The applicant adds that the continued impunity of the respondents is a continued violation of his rights and urges the court to grant the orders sought. 8. As observed, the respondents did not file a reply contesting the motion. With meticulous keen, I have wholesomely considered the application, and applicants written submissions. The three (3) key issues falling for determination in my view are; - ELC MISC NO. E005 OF 2026 – RULING Page 4

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(i) Whether or not, this court has jurisdiction to entertain this motion (ii) Whether or not, this court should hold the 1 st respondent’s Chief Executive Officer in contempt for failing to comply with the orders of the Land Acquisition Tribunal? (iii) Whether the court can grant the reliefs sought, if any? ANALYSIS AND DETERMINATION 9. The broad jurisdiction of this Court is spelt out by Article 162 (2) (b) which provides as follow: “162 (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) ....... (b) the environment and the use and occupation of, and title to, land” ELC MISC NO. E005 OF 2026 – RULING Page 5

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10. Pursuant to Article 162 (2) of the Constitution, Parliament enacted the Environment and Land Court Act, establishing this court. Section 13 of the Act, elaborate in detail, the jurisdiction of the Court; “13. Jurisdiction of the Court 1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— a) relating to environmental planning and protection, climate planning, title, issues, tenure, land use boundaries, rates, rents, valuations, mining, minerals and other natural resources; ELC MISC NO. E005 OF 2026 – RULING Page 6

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b) relating to compulsory to land acquisition of land; c) relating administration and management; d) relating to public, private, and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e) any other dispute relating to the environment and land. 3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or……. 11. From the foregoing, it is apparent that this court does have jurisdiction to handle an application of this nature. 12. Again, Section 5 of the Judicature Act, donates jurisdiction for this court to handle applications of this nature. The provision categorically reiterates that the High Court and Court of appeal ELC MISC NO. E005 OF 2026 – RULING Page 7

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reserves explicit authority to handle and punish contempt. 13. By virtue of Article 162(2) of the constitution, High Court in this regard shall mean, all courts of equal status to High court, and therefore Section 5 of the Judicature Act, shall apply mutatis, mutandis. 14. On whether or not, this court should hold the 1 st respondent in contempt for failing to comply with the orders of the Land Acquisition Tribunal, it is obvious from the record and chronological events outlined by the applicant, the respondent has blatantly defied the tribunal orders. That is without question. Infact, even the respondent non response to the motion despite proper service may impugn that they are not opposed to the application. However, substantively, superior court have held that contempt proceedings in defiance of court orders should always be invoked as a last resort, where there exist no avenues to compel compliance 15. In the case of Econet Wireless Kenya Limited v Minister For Information And ELC MISC NO. E005 OF 2026 – RULING Communication Of Kenya Page 8

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Authority [2005] eKLR, the court stated the following on contempt of court: “It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void." 16. Further in the case of Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, the Court of Appeal 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 ELC MISC NO. E005 OF 2026 – RULING Page 9

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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 ELC MISC NO. E005 OF 2026 – RULING P a g e 10

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an order for committal or sequestration, whether the offender is a party to the proceedings or not.” 17. Based on the quasi-criminal nature of these proceedings, the courts are always called to exercise restrain when dealing with contempt proceedings as a first resort. 18. In Oilfield Movers Ltd v Zahara Oil & Gas Limited [2020] eKLR the court observed that: “It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty...” 19. Premised on the foregoing, it is clear that though court orders must be respected, and complied with, prayers no. 2 and 3 in my view cannot grant as the 1st respondent before court is a government entity and compliance can be compelled through alternative means and/or appropriate proceedings ELC MISC NO. E005 OF 2026 – RULING P a g e 11

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20. On whether or not, the court can allow the alternative order sought in terms of prayer no. 4, I note that the mandate of compulsory acquiring interests in land is vested under the National Land Commission. Section 107(1) of the Land Act is categorical on the National Land Commission mandate that valuation has to be done by the commission to ascertain its market value as further outlined under Section 107 and 107 A of the Act. 21. This observed, it is my finding that allowing prayer 4 will not only be a misapplication of statute, but I will be rewriting the law which is already trite and settled. 22. For the foregoing reasons, it is my finding that the application cannot grant, in totality. It is my considered view that there exist other avenues to compel compliance from the 1st respondent and contempt of court orders, should only be invoked as a last resort. 23. Consequently, the motion dated 22nd April 2026 is hereby rejected and dismissed, with no orders as to costs. 24. It is so ordered. ELC MISC NO. E005 OF 2026 – RULING P a g e 12

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RULING IS DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 29TH JULY 2026. L.T. LEWA JUDGE IN THE PRESENCE OF: Court Assistants – Ms. Nelly/Mr. Musyimi Applicant – Mr. Owino Respondents - Absent ELC MISC NO. E005 OF 2026 – RULING P a g e 13

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