Kiptugen v Commissioner of Lands & 8 others

1. The Plaintiff/ Applicant herein filed an application vide the Notice of Motion dated 27th March, 2026, against the Respondents seeking the following orders: 1. Spent. 2. The Director and/or in-charge Ethics and Anti-Corruption Commission, North Rift Regional Office and the County Land Registrar, Uasin Gishu be summoned to court on a date to be fixed by the court and show cause why they should not be punished for contempt of court for disobeying and/or violating the judgment and decree of this court and appeal. 3. That upon being found in contempt, the 1 st and 2nd Respondents be ordered to purge the contempt by removal of the Restriction within 7 days and in default be jailed for contempt for a term of 2 years. 2. The present application is premised on the Plaintiff/Applicant’s Supporting Affidavit sworn on even date. 3. The plaintiff/applicant deponed that he is the decree/holder in the matter, this court having issued orders and decree that he is the bonafide owner and proprietor of the suit property herein known as L.R. No. Eldoret Municipality/Block 7/154, which decision was affirmed by the Court of Appeal. He annexed copied of the decree issued by this Court on 27.01.2021 and the decree of the Court of Appeal issued on 15.12.2023. 4. It is his claim that sometimes on 03.03.2026, he received a notice from the 2nd respondent, notifying him that a ELC Case No. 787 Of 2012 Ruling Page 2

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restriction had been placed/lodged against the title of the suit property, for the reason that there were pending investigations. However, it is his contention that he was not furnished with the basis of the said investigations. 5. The applicant avers that upon receiving the said notice, he instructed his advocate on record to write to the respondents and bring to their attention the existence of the judgment and decree of this court as well as the decision and decree of the Court of Appeal and which in essence meant that their actions were contemptuous. 6. That in response to their letter, the 1st respondent vide a letter dated 25.03.2026 wrote to them justifying the reasons for the restriction reiterating/citing investigations that were being undertaken. 7. He reiterated that both this court and the Court of Appeal decreed that he was the bonafide allottee and registered owner of the suit property which decrees he argues are binding upon the respondents herein. 8. It is therefore his claim that the respondents have ignored, refused and/or neglected to yield to either the notice or the demand for the removal of the restriction against the title of the suit property and their actions are therefore in contempt ELC Case No. 787 Of 2012 Ruling Page 3

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of the valid orders of this court and the orders of the Court of Appeal hence the present application. 9. In conclusion, it was deponed that there is need to protect the integrity of the decisions of the court hence the need to punish the respondents herein for contempt and order/direct them to purge the contempt by removing the restriction placed against the title of the suit property. 10. The present application was opposed. Both the 1 st and 2nd respondents filed their respective Grounds of Opposition diversely dated in response to the averments made by the plaintiff/applicant. 11. The 1st respondent filed a Grounds of Opposition dated 21 st April, 2026 in opposition to the present application. They outlined the establishment of the Ethics and Anti-Corruption Commission pursuant to the provisions of Article 79 of the Constitution as read with section 3(1) of the Ethics and AntiCorruption Commission Act 2011 as well as the mandate of the Commission. 12. It was further pleaded that the Commission is empowered by law to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crimes and unethical conduct in compliance with the provisions of Chapter 6 of the Constitution, the Anti- ELC Case No. 787 Of 2012 Ruling Page 4

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Corruption & Economic Crimes Act, the Ethics & AntiCorruption Commission Act as well as the Leadership and Integrity Act, Cap 182 Laws of Kenya. 13. That on the strength of the above legal framework; the 1 st respondent exercised its constitutional and statutory mandate to investigate corruption and economic crimes and thus maintained that the said action does not amount to contempt of the court. 14. It is therefore his claim that the present application threatens to encroach upon the independence of the Commission contrary to the provisions of Article 79 of the Constitution. 15. The 1st respondent further contends that the prayer for the court to find and declare the actions of the 1 st respondent as contemptuous denotes a violation of specific court orders directed at the 1st respondent to do or refrain from doing a specific act when in fact, no such court orders exist. 16. In addition, the 1st respondent avers that the 1st respondent and/or the Commission was not a party to this suit that culminated in the judgment and decree herein and the 1 st respondent is therefore a stranger to the proceedings and cannot therefore be bound by the said orders as issued. ELC Case No. 787 Of 2012 Ruling Page 5

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17. It is therefore his contention that in the absence of joinder, service or participation in the proceedings, the 1 st respondent cannot be said to have willfully disobeyed any court orders. 18. In conclusion, it was pleaded that contempt of court being quasi-criminal in nature, strict proof of personal service of the court order is required as well as the clear and unequivocal knowledge of the order allegedly disobeyed. 19. He thus maintained that the applicant did not establish these essential elements against him or demonstrated that he had any legal duty arising from the decree of this court. He thus urged the court to dismiss the application with costs. 20. The 2nd respondent also filed a Grounds of Opposition dated 2nd July, 2026 in response to the present application. 21. It was pleaded that the 2nd respondent acted within its statutory mandate provided in section 76 of the Land Registration Act, by allowing the application dated 25.02.2026 by the Ethics and Anti-Corruption Commission to place a restriction on the suit property and 8 others, pending investigations. ELC Case No. 787 Of 2012 Ruling Page 6

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22. That the Land Registrar was therefore complying with a lawful process which she was duty bound in law to consider and implement. 23. The 2nd respondent further averred that the decree and orders issued by this court which was upheld by the Court of Appeal in Civil Appeal No. ELD No. E034 of 2021, did not prohibit the registrar from registering a restriction under the land registration laws. 24. She however acknowledged that both this court and the Court of Appeal vide its decision in Civil Appeal No. ELD No. E034 of 2021 issued on 15.12.2023 made a declaration that the plaintiff/applicant was the owner of the suit property. 25. In conclusion, the 2nd respondent maintained that she acted pursuant to the powers conferred by the Land Registration Act, 2012 and in fidelity to the Constitution and the said acts do not amount to contempt of court. She therefore urged the court to dismiss the present application with costs. 26. On 05.05.2026, this court issued directions that the present application be canvassed by way of written submissions. The plaintiff/applicant filed his submissions dated 15.06.2026 with authorities. The 1st respondent filed his submissions dated 08.07.2026 and list of authorities while the 2 nd ELC Case No. 787 Of 2012 Ruling Page 7

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respondent filed her submissions dated 02.07.2026 together with authorities, which I have read and considered. Analysis and Determination 27. I have carefully looked at the facts and grounds contained in the application and the supporting affidavit, the annexures thereto, the Grounds of Opposition filed by the respondents respectively as well as the rival submissions and the authorities cited in totality. 28. Consequently, this court identifies the following issues for determination: a) Whether the applicant has proved the essential elements of contempt to the required standard. b) Whether the respondents’ actions amount to contempt of court c) Whether the present application is merited d) Who shall bear the costs of the present application. 29. Having identified the above issues for determination, I will now proceed to discuss the same as hereunder. Whether the applicant has proved the essential elements of contempt to the required standard; 30. The first issue herein seeks to determine whether the applicant has sufficiently demonstrated and satisfactorily proved the essential elements of contempt to the required standard. ELC Case No. 787 Of 2012 Ruling Page 8

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31. The legal and statutory framework on contempt is found under the Judicature Act as well as the Environment and Land Court Act. Section 5 of the Judicature Act provides as follows: “(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 the subordinate courts.” 32. Section 29 of the Environment and Land Court Act on the other hand 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 to both.” 33. Contempt has been defined in the Black's Law Dictionary (Ninth Edition) as follows; “Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.” ELC Case No. 787 Of 2012 Ruling Page 9

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34. It is common ground that the substantive suit herein was heard and determined vide the Judgment issued on 27.01.2021 by Hon. Justice M.A. Odeny on behalf of Hon. Justice A. Ombwayo. 35. It is also not in dispute that the 4 th, 5th and 7th defendants being aggrieved by the said judgment of this court (differently constituted) issued on 27.01.2021 lodged their respective appeals to the Court of Appeal vide the proceedings known as Eldoret Civil Appeal No. E034 of 2021 as consolidated with Eldoret Civil Appeal No. E055 of 2021 and Eldoret Civil Appeal No. E200 of 2021. 36. The said consolidated appeals were heard and determined vide the judgement of the Court of Appeal issued on 19 th December, 2023 and whose effect was to find that the consolidated appeals were not merited and upheld the trial court’s judgment as well as affirm Daudi Kiptugen as the bonafide registered owner of the suit property. The said consolidated appeals were therefore dismissed with costs. 37. The question that this court therefore seeks to determine is whether the applicant herein has proved the essential elements of contempt to the required standard. 38. It is settled law that the standard of proof in contempt matters is higher than that of ordinary civil matters. The Court of Appeal in Mutitika Limited [1985] KLR 229, 234 vs Baharini while Farm discussing the standard of proof in contempt proceedings held that: ELC Case No. 787 Of 2012 Ruling Page 10

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“In our view, the standard of proof in contempt proceedings must be higher than proof on the 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, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail must be exercised with utmost care and exercised only as a last resort. It is utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate in the sense that he or she wilfully acted in a manner that flouted the court order.” 39. Having established that the standard of proof required in contempt matter is higher than the threshold required in ordinary civil matter, it is important to consider the elements of contempt and ascertain whether the same were strictly proved to the required standard. 40. The elements to be proved in contempt proceedings were discussed in the case of Samuel M. N. Mweru & ELC Case No. 787 Of 2012 Ruling Page 11

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Others vs National Land Commission & Others [2020] eKLR where the court held as follows:- 2 “40.It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove; i.the terms of the order, ii.Knowledge of these terms by the respondent, iii.Failure by the respondent to comply with the terms of the order. Upon proof of these requirements the presence of wilfulness and bad faith on the part of the respondent would normally be inferred, but the respondent could rebut this inference by contrary proof on a balance of probabilities.” 41. I will now proceed to discuss each of the elements outlined above in determining whether the same have been sufficiently proved by the applicant. The Terms of the Judgment dated 27.01.2021 and Decree thereto. 42. The applicant annexed a copy of the decree resulting from the judgment delivered on 27.01.2021 by Hon. Justice M.A. Odeny on behalf of Hon. Justice A. Ombwayo and marked “DK1”. ELC Case No. 787 Of 2012 Ruling Page 12

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43. I wish to reproduce contents therein in part and the final orders issued thereto as follows: “IT IS HEREBY DECREED THAT: a. An order of permanent and perpetual injunction restraining the 1st, 2nd and 5th defendants from issuing another lease and certificate of lease to the 4th defendant over the property described as ELDORET MUNICIPALITY BLOCK 7/154. b. An order to the 1st and 2nd defendants to reinstate the expunged original records on title No. ELDORET MUNICIPALITY BLOCK 7/154 indicating the plaintiff as the original owner and failure to do so the copies thereto be treated as the originals. c. A declaration that the creation and subsequent allotment and issuance of a lease dated 24 th June, 1999 to the 4th defendant is unprocedural, obtained through corrupt scheme, fraudulent, illegal, null and void ab initio and the NATIONAL Land Commission to cancel it and that the creation of a register by the 5th defendant and subsequent issuance of a certificate of lease on 4th July, 2000 in favor of Leah Chelagat Kipchillat over suit property was unprocedurally obtained through a corrupt scheme, fraudulent and illegality and I do issue an order that the county land registrar cancels the register and certificate of lease issued to Leah Jelagat. d. A declaration that the 6th defendant’s claim of the suit property on the basis of a letter of allotment dated 24th June, 2000 does not lie in law, obtained fraudulently, unprocedurally and through a corrupt scheme. ELC Case No. 787 Of 2012 Ruling Page 13

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e. A declaration that the plaintiff is the bonafide owner of plot number ELDORET MUNICIPALITY BLOCK 7/154. f. Costs of the suit to the plaintiff. 44. As earlier pointed out, the judgment of this court was upheld by the Court of Appeal in its judgment issued on 19.12.2023 and the plaintiff/applicant’s acquisition and ownership affirmed. Consequently, the terms of the judgment issued on 27.01.2021 and the Decree issued on the same date remain the same since they were neither discharged, set aside and/or varied in any manner whatsoever by the Court of Appeal in its judgment. 45. It is therefore my considered view that the terms of the judgment and the resultant decree thereto were clear and unequivocal as to the obligations of the defendants with regard to what they were ordered to do and/or refrain from doing. Knowledge of these terms by the Respondents; 46. The second element is whether the respondents were aware and had knowledge of the terms of the Judgment and decree issued on 27.01.2021. ELC Case No. 787 Of 2012 Ruling Page 14

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47. The applicant contends that both the respondents were fully aware of the terms of the judgment and decree of this court as well as the judgment and decree of the Court of Appeal. 48. It is his claim that the 2nd respondent, being a party in the substantive suit was fully aware of the judgment and decree of this court and the terms thereto, which were upheld by the Court of Appeal in its judgment issued on 19.12.2023 and the resultant decree thereto. 49. With regard to the 1st respondent, it is the applicant’s contention that vide the letter dated 23.03.2026 from his advocate on record to the 1 st respondent, they brought to their attention the existence of the judgment and decree of this court as well as the judgment and decree of the Court of Appeal and the terms thereto and maintained that the acts of the 1st respondent were therefore contemptuous. 50. The 1st respondent on his part did aver that he, and by extension the Ethics and Anti-Corruption Commission, was not a party in the substantive suit and he is therefore a stranger to the proceedings, judgment and decree of this court as well as that of the Court of Appeal. 51. He maintained that he neither participated in the proceedings in the main suit nor was he personally served with the judgment and decree arising therefrom and he therefore had no knowledge of the judgment, decree or the terms thereto. ELC Case No. 787 Of 2012 Ruling Page 15

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52. The 2nd respondent on her part admitted that she was a party in the main suit and even confirmed the terms of the judgment and decree of this court as well as that of the Court of Appeal and the obligation placed on her from the said decree. 53. Taking the totality of the rival positions taken by the applicant and the respondents, it is my considered opinion that the respondents had full knowledge of the judgment and decree herein as well as the terms thereto. The 2 nd Respondent was a party to the substantive suit and was fully aware of the judgments and decrees both of this court and the Court of Appeal. 54. On his part, although he was not a party to the suit, the 1 st respondent was served with the letter dated 23.03.2026, and was informed of the judgment and decree of this court as well as the judgment and decree of the Court of Appeal which was attached thereto. He therefore became aware and had knowledge of the proceedings, judgment and decree of this court and that of the Court of Appeal as well as the terms therein. Failure by the Respondents to comply with the terms of the order; 55. The third element is whether the respondents, willfully and deliberately failed, ignored and refused to comply with the terms of the judgment and decree. ELC Case No. 787 Of 2012 Ruling Page 16

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56. It is the applicant’s claim that having been decreed as the bonafide allotee and registered owner of the suit property herein, the effect of the restriction placed against the title thereto and refusal to remove the same after notice on the existence of the valid court orders and decrees and heed to the demand issued for the removal of the restriction thus amounts to wilfull disobedience of valid court orders. 57. The 1st respondent on his part averred that he acted in exercise of his constitutional and statutory mandate to investigate corruption and economic crimes based on a complaint on an alleged fraud in the allocation of a public land. 58. The 2nd respondent on the other hand did state that she acted within its statutory mandate as provided under section 76 of the Land Registration Act, in complying with a lawful process which she argues, she is bound in law to consider and implement. 59. Further, the 2nd respondent contends that the judgments and decrees arising from this court as well as from the Court of Appeal did not prohibit her from registering a restriction under the land registration laws. 60. In considering whether there was indeed failure to comply with the terms of the judgment and decree of this court, it is important to look at both the terms of the judgment and decree as well as the acts by the respondents which are allegedly contemptuous. ELC Case No. 787 Of 2012 Ruling Page 17

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61. The judgment and decree of this court inter alia, declared that the Applicant herein was the bona fide owner of the suit property, plot No. Eldoret Municipality Block 7/154. That decision was subsequently upheld by the Court of Appeal. Both the decisions of this court and the Court of Appeal have never been set aside or reviewed and therefore remain in force. As already stated, the 2 nd Respondent herein was a party to the proceedings before this court and the Court of Appeal. The 1st Respondent though notified of the existence of the said judgements and decrees has declined to remove the said restriction. 62. For as long as the judgment and decrees of this court and the Court of Appeal remained in force, the Respondents and anyone else were duty bound to obey it. In the case of Eldoret Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another (2005) EKLR, it was stated as follows:“It is essential for the maintenance of the rule of law and order that the authority and 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 or in respect of whom, an order is made by the court of competent jurisdiction to obey it unless and until that order is discharged. ELC Case No. 787 Of 2012 Ruling The Page 18

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uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.” 63. In view of the above decision, the 1 st Respondent cannot purport to act in exercise of his constitutional and statutory mandate to investigate an alleged fraud in the allocation of the suit land when there is in place a valid and binding judgment of this court and the Court of Appeal with regard to the ownership of the said land. The only remedy for them was to move the court to have those orders discharged, which they did not. 64. In the case of B –vs- Attorney General (2004) IKLR 431, Ojwang J. (As he then was) stated:“The court does not, and ought not to be seen to, make orders in vain; otherwise the court would be exposed to ridicule and no agency of the Constitutional order would then be left in place to serve as a quarantee for legality, and for the rights of all people.” 65. It is therefore my conclusion that the respondents herein have been in willful and deliberate disobedience of the orders of this court which were infact upheld by the Court of Appeal. ELC Case No. 787 Of 2012 Ruling Page 19

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66. Consequently, this court finds that the plaintiff/applicant has satisfactorily proved the essential elements of contempt to the required standard. 67. The Court of Appeal in the case of Shimmers Plaza Ltd vs NBK (2015) eKLR approved the growing jurisprudence that has reiterated that knowledge of a court order suffices to prove service for the purpose of contempt proceedings, and cited with approval Hon. Lenaola, J (as he then was) in Basil Criticos Vs. A.G & 8 others (2012) eKLR where he stated:“… the law has changed and as it stands today knowledge superseded personal service…. Where a party clearly acts and shows that he had knowledge of a requirement that court order, personal the service strict must be amount to whether the proved is rendered unnecessary.” Whether the Respondents’ actions contempt of court; 68. The second issue for determination is Respondents actions amount to contempt of court. In the case of Sheila Cassat Issenbarg & another vs Antony Macharia Kinyanjui (2021) eKLR, the court held as follows:“… there must be willful and deliberate disobedience of court orders.” ELC Case No. 787 Of 2012 Ruling Page 20

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There cannot and willful contemnor had knowledge of the existence of that order. And disobedience, be deliberate unless the because contempt is of a criminal nature, its always important that breach of that order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.” 69. In view of the findings in No. (i) above, it is my considered opinion that the acts by both the 1 st and 2nd Respondents amount to contempt. Whether the Application is merited; 70. The applicant herein has sought for orders that the Respondents be summoned to show cause on why they should not be found in contempt. Further, it is his prayer that upon the respondents being found in contempt, they be ordered to purge the contempt and in default, they be jailed for contempt for a term of two (2) years. 71. This court has held that the actions by the 1 st and 2nd Respondents are in contempt. This is because there is a judgment and decree in favour of the applicant which is in force and has not been set aside or discharged. This court takes note of the effect of the restriction placed against the ELC Case No. 787 Of 2012 Ruling Page 21

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title of the suit property which basically frustrates the execution of the judgment and decree of this court and the Court of Appeal without following due process to review and/or set aside that judgment and decree. I wish to reiterate that this court vide the judgment issued on 27.01.2021 decreed that the applicant is the rightful and bona fide allotee of the suit property herein. That decision was upheld by the Court of Appeal in its decision dated 19.12.2023. This in essence meant that the plaintiff/applicant is entitled to the use of his rightful property and all the rights and interests appurtenant thereto as outlined in section 24 and 25 of the Land Registration Act. The effect of the restriction placed against the title of the suit property therefore limits the Applicants’ use and enjoyment of his land in the face of valid court orders. 72. Therefore, this court finds that there is need for the respondents to be ordered to purge the contempt by removing the restriction within fourteen (14) days from the date of this ruling, and in default, they appear in court for purposes of sentencing. Who shall bear the costs of the present application? 73. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. ELC Case No. 787 Of 2012 Ruling In Page 22

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light of the court’s finding that the application has been proved by the applicant, costs of the application are awarded to the applicant to be borne by the 1 st and 2nd respondents jointly and severally. Conclusion: 74. The upshot of the above is that the Notice of motion application dated 27th March, 2026 is merited and the same is allowed on the following terms:a) The 1st and 2nd respondents are ordered to purge the contempt and remove the restriction placed on Title No. Eldoret Municipality Block 7/124 within 14 days from the date hereof. b) In default of order (a) above, notice to show cause be and is hereby issued to the 1 st and 2nd respondents herein to appear in court and show cause why they should not be punished for contempt. c) Costs of the application are awarded to the applicant. 75. It is so ordered. DATED, SIGNED and DELIVERED at ELDORET this 17th day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the presence of: Mr. Bundotich Korir for the Plaintiff/ Applicant ELC Case No. 787 Of 2012 Ruling Page 23

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Ms. Karita for the 1st Respondent No appearance for the 2nd Respondent Court Assistant – Laban ELC Case No. 787 Of 2012 Ruling Page 24

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