Marko Oyaro Chweya alias Mark Kerambo Makemba Suing as Legal Representative of Makemba Chogo v Esther Karugi Gichogo & another

c) The respondents be condemned to pay the costs of this application as an additional penalty that M/S Kerati Muriri Auctioneers be granted an order by this court to flash out the respondents from the land as per the court decree. 2. The application best on seven grounds which were that the Defendants? Respondents had demolished the residential houses of the applicant well he was away on duty. They had destroyed the latrine of the applicant and had ploughed the land of the applicant and planted maize on it. They had cut down trees of the applicant by use of force and sold them. They had neglected and undermined the supremacy of the court and were not keen on respecting its order/ decree and supremacy. They had lowered the dignity of the court by willfully disobeying the court orders, yet the orders ought to be respected at all times by all citizens irrespective of status. 3. The application was supported by plaintiff’s own affidavit he swore on even date. In the affidavit he deponed that the respondents had violated the decree or order of the court by willfully disobeying it. They issued threats of injury to him if he RULING ELCOS NO. 662 OF 2017 2

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stepped on his father’s land. He repeated the rest of the contents of the grounds of opposition save that he added to the deposition an annexure to show that reported the matter of the destruction of his property, as stated above, at the police station vide Occurrence Book (OB) number 16/1/ 12/2023 at 13:33 hours. The annexture was an extract of OB he signified as Exhibit 4. He also annexed as Exhibit 1 a copy of the decree, Exhibit 2 photographs and copies of a semi permanent house which were destroyed, and Exhibit 3 copies of photographs of the demolished latrine and trees that had been cut down. He prayed for the Court to grant the prayers sought. 4. It is worth noting that the application was not responded to by the Respondents. But it was heard on merits. 5. In the course of hearing of the application the area chief one Wilson Chacha testified under oath. He stated that he was the area chief of Bwirege West Location wherein the suit land was located. The suit parcel number 331 was ancestral land for the family of Makumba Chweya Chogo who was one of the beneficiaries. He stated that he knew the plaintiff Mark Oyaro as one of the other beneficiaries. He added that he was not RULING ELCOS NO. 662 OF 2017 3

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aware that there were any houses that were destroyed on the land. Further, that when he received the information he visited the suit land. However, he was not aware that there was destruction of anything on it including the alleged toilet. He testified that the trees which were cut down on it were felled by the applicant. He was not aware that the applicant was chased away by one Mr. Mwita Chogo. He did not know who was working on the land but Mwita Chogo was residing on it, and he was an uncle to the plaintiff who is the applicant. He was not aware whether there was a judgment delivered over the suit land. 6. On cross examination he added that he visited the parcel of land and noted that some trees had been cut down and others were not. They were cut down by the plaintiff, Mark Oyaro, the Applicant, and he was prevented from doing so. Upon being stopped from doing so he reported the matter to the police, requesting to be permitted to cut the trees. He admitted he used to see a structure of house on the land before but when he visited it upon being asked by the court to do so it was not there. He did not know who demolished it. He visited the land RULING ELCOS NO. 662 OF 2017 4

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the day before he testified in court. He added that the suit land belonged to one Chogo (deceased) who was the grandfather of the complainant and Mwita Chogo, the second defendant was a son the said Chogo. In reexamination he could confirm who had demolished the house but he only believed it was demolished. He insisted he had never seen a latrine on the land. SUBMISSIONS 7. Only the applicant filed submissions herein. They were dated 18th May 2026. He submitted that the court gave the decree on 29th July 2022 and issued it on 2nd February 2023. He submitted on the issue that the decree was extracted and served, and that the Respondent’s counsel was present in court when the decree was issued hence the Respondent was aware and admitted knowledge of it. That that notwithstanding, the applicant submitted, the Respondent had willfully disobeyed the decree yet orders of the court ought to be obeyed unless they are set aside. He relied on the case of Econet Wireless Kenya limited v. Minister of Information and Communications of Kenya and another (sic) and The Teachers Service Commission v. The Kenya Union of Teacher and 2 others (sic). RULING ELCOS NO. 662 OF 2017 5

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He added that despite the Respondent being aware of the decree he went ahead and committed the acts complained of. He also added that the area chief who appeared in court confirmed the actions, especially the demolition of the applicant's house, and that the Respondent was the applicant’s uncle. He summed it that the actions constituted contempt of court, and prayed for the orders sought. ISSUE, ANALYSIS AND DETERMINATION 8. I have anxiously considered the application, the Supporting Affidavit, the annextures thereto, the oral testimony of the Area Chief, together with both the law and the submissions of the applicant. The issues that recommend themselves for determination before me are whether the application is merited and who to bear the costs of the application. 9. Before proceeding with the analysis, the first preliminary point to note is that the Respondent did not file a response to the application. It means, as per the legal position regarding facts deposed to, they basically are not controverted. However, it is my considered opinion that that of itself does not mean that this court need not consider the merits of the application and RULING ELCOS NO. 662 OF 2017 6

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thereby proceed to allow the application as prayed. Indeed, the legal position is that where evidence is presented by way of an affidavit, the factual content ought to be replied to by way of another affidavit. Otherwise, the facts remain uncontroverted. This has been echoed in a number of decisions such as the Court of Appeal ruling in Habo Agencies Ltd v Musingo (Civil Appeal 124 of 2004) [2015] KECA 597 (KLR) (3 July 2015) (Ruling). In it the Court held; “The applicant deponed that he became aware of the dismissal of the appeal in or about March 2014. As the respondent did not file a replying affidavit, that fact was not controverted. There were no facts to show otherwise.” 10. However, the above position notwithstanding, the court has the legal obligation to satisfy itself that an applicant or claimant or plaintiff whose pleadings are not responded to has discharged the evidentiary burden placed on him by the law, to the required standard. Put differently, failure by the adverse party to file pleadings in response to the alleged position does RULING ELCOS NO. 662 OF 2017 7

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not in any way lower the claimant’s standard of proof. That has to be discharged fully. 11. Secondly, the Applicant did not file submissions on the application. This does not mean that the application should not be determined on merits because submissions are neither evidence nor pleadings of parties as was stated in the case of Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment). In it the Court of Appeal held, “Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 12. On this basis of the clarification on the two issues above, the court proceeds to determine the instant application. a) Whether the application is merited RULING ELCOS NO. 662 OF 2017 8

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13. The first issue is whether the application is merited. In this Court, that is the Environment and Land Court (ELC), punishment for contempt of Court is provided for under Section 29 of the Environment and Land Court Act. The provision reads 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.” 14. In order for the Court to determine whether or not there was breach of the decree of the Court issued on 28/02/2022, a number of requirements ought to be made. However, before delving into the consideration as to whether the claim is merited it is apt to understand what constitutes Contempt of Court. 15. Bryan Garner in his book Black’s Law Dictionary, 11th Edition, Thompson Reuters, 2019, p. 397, defines contempt as, RULING ELCOS NO. 662 OF 2017 9

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“…disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or impair the respect due to such a body”. 16. It goes then that any party, whether served with a court order or not as long as it is directed to him or her, is bound to obey it provided that he has knowledge of the existence of the order. Court orders are not issued in vain: they must be obeyed, respected and/or fulfilled. 17. The courts in our jurisdiction have had a lot to say about obedience of court. In Kenya Human Rights Commission v Attorney General & another [2018] eKLR the Court emphasized as follows: “Article 159 of the Constitution recognizes the judicial authority of courts and tribunals established under the Constitution. Courts and Tribunals exercise this authority on behalf of the people. The decisions courts make are for and on RULING ELCOS NO. 662 OF 2017 10

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behalf of the people and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is vital for the preservation of our constitutional democracy. The judiciary acts only in accordance with the Constitution exercises its and the judicial law (Article authority 160) and through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become effective in the discharge of their constitutional mandate.” RULING ELCOS NO. 662 OF 2017 11

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18. Elsewhere, in Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another CCT 19/11(75/2015) Nkabinde, J observed that:“The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.” 19. In Canada, the Court was more emphatic that any other in other jurisdictions. It did so in the case of Canadian Metal Co. RULING ELCOS NO. 662 OF 2017 12

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Ltd v Canadian Broadcasting Corp (N0.2) [1975] 48 DLR (30), where it stated that: “To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to correct… wrong can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.” Courts therefore punish for contempt to insulate its processes for purposes of compliance so that the rule of law and administration of justice are not undermined. Without this power or where it is limited or diminished, the court is left helpless and its decisions would mean nothing. This ultimately erodes public confidence in the courts; endangers the rule of law, administration of justice and more importantly, RULING ELCOS NO. 662 OF 2017 13

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development of society. That is why the court stated in Carey v Laiken [2015] SCC 17 that; “Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect” It is therefore a fundamental rule of law that court orders be obeyed and where an individual is enjoined by an order of the court to do or to refrain from doing a particular act; he has a duty to carry out that order. The court has a duty to commit that individual for contempt of its orders where he deliberately fails to carry out such orders. (Louis Ezekiel Hart v Chief George 1 Ezekiel Hart (-SC 52/2983 2nd February 1990). and in Hon. Martin Nyaga Wambora and another v Justus Kariuki Mate & another [2014] eKLR, the Court stated the duty to obey the law by all individuals and institutions is cardinal in the maintenance of rule RULING ELCOS NO. 662 OF 2017 14

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law and administration of justice. It is therefore clear that the importance of the judiciary in the maintenance of constitutional democracy cannot be overemphasized. In order to achieve this constitutional mandate, the judiciary requires the power to enforce its decisions and punish those who disobey, disrespect or violate its processes otherwise courts will have no other means of ensuring that the public benefit from the judgments they hand down and the orders and or directions made on their behalf. When stripped of this power courts will be unable to guarantee compliance with their processes and will certainly become ineffective in the discharge of their duties and performance of their functions with the ultimate result that the public, as trustees of the rule of law, will be the major victim.”” 20. This court, in its ruling in Wamalwa v Ekirapa (Environment and Land Miscellaneous Application 2 of RULING ELCOS NO. 662 OF 2017 15

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2022) [2022] KEELC 13267 (KLR) (5 October 2022) (Ruling), held that: “In order for one to be found guilty of the Contempt of Court, four (4) elements must be proved. There must have been: (a) a valid order of the Court... (b) the order constructively must in the have been knowledge served of the or been alleged contemnor. (c) there must be an action or actions of a contemnor contrary to the order (d) the actions of the contemnor in violation must be deliberate.” 21. Again, in Michael Sistu Mwaura Kamau v DPP & 4 others (2018) eKLR, the Court of Appeal stated as follows: “It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the RULING ELCOS NO. 662 OF 2017 16

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ruling of the Supreme Court in Republic v Ahmad Abolfathi Mohammed & another (supra). Secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in A.B. & another v R. B. [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v Baharini Farm (supra) and Republic v Ahmad Abolfathi Mohammed & another (supra)”. 22. Similarly, in Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR, emphasized as follows: “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 RULING ELCOS NO. 662 OF 2017 17

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complained of with full knowledge or notice 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”. 23. The elements of contempt of court as enunciated above have to be proved. In the instant case the applicant complained that the respondent had deliberately disobeyed decree of this. It is not disputed that the first element regarding contempt of court, which is whether there was a valid decree of the court, is common knowledge of the parties that a decree was issue herein. It is also not disputed that the second element, being that the parties were aware of the decree, is agreed upon. The only issue that is in contention is whether there were actions by the Respondent which amounted to proof of the third element which is that those actions were contrary to the court decree, and the fourth that if they were done, they were deliberate or willful. 24. In this case, applicant contended that his house was demolished and trees cut down, by the Respondent who was his uncle. That was deponed in his Affidavit in support of the RULING ELCOS NO. 662 OF 2017 18

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application, and the same content was in the grounds in support of it. However, when the area Chief testified orally over the alleged actions he discounted all of them. He stated that he was not aware of a house or latrine having been demolished in his area of jurisdiction, particularly on the applicant’s parcel of land. He stated the he actually had visited the land to confirm these allegations, regarding the cutting down of trees and he demolition. He confirmed that, indeed, there were trees cut down on the suit parcel of land but that those trees were felled by the applicant himself who, when he was stopped from continuing with the actions, proceeded to report the matter to the police station. But even then, his actions were stopped. It therefore means that the Respondents did not commit the acts of contempt alleged. Further, it is then clear that application has been not has not been proved to the required standard which is higher than on a balance of probability but not necessarily beyond reasonable doubt. I therefore find that the application is not merited and I dismiss it with costs to the Respondent. 25. Orders accordingly. RULING ELCOS NO. 662 OF 2017 19

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Ruling Dated, Signed and Delivered virtually via the Teams Platform this 23rd day of September 2026. HON. DR. IUR NYAGAKA JUDGE From 08:54 AM, in the presence of, Mr. Sagwe Advocate for the Applicant Mr. Achola Advocate for the Respondent, absent RULING ELCOS NO. 662 OF 2017 20

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