1.By a Notice of Motion Application dated April 29, 2019 and filed on April 30, 2019 (the application herein), the applicant through Moriasi Osoro and Company Advocates are seeking the following orders;a.Spentb.That the honourable court be pleased to order for the detention In prison of Samwel Okeyo Otind, the interested party herein for disobedience of court order for stay granted by this honourable court on the September 27, 2018.c.That the honourable court be pleased to order for the attachment of properties of Samwel Okeyo Otindo for compensation of damages caused to the applicant’s property and for breach of stay order of this honourable court.d.That upon determination of this application, the honourable court be pleased to issue an order of arrest directed to the officer in charge of Mfangano Police Station to arrest and bring before court Samuel Okeyo Otindo to be committed to jail for contempt of court order dated September 27, 2018.e.That the honourable court be pleased to award costs to the applicant.
2.The application is founded upon grounds 1 to 4 stated on the face of the same. It is further anchored on the applicant’s supporting affidavit of nine paragraphs sworn on even date together with the annexures thereto.
3.Briefly, the applicant contends that he filed Judicial Review application dated September 25, 2018 seeking, amongst other orders, that the court do quash the decision of the Assistant County Commissioner who awarded the interested party the suit land. That the court issued a temporary order of stay, which order was properly served on both the respondents and the interested party herein. That in total disregard of the court order, the interested party together with his family members cut down trees on the suit land and burnt charcoal thereon.
4.In opposition to the application, the interested party through E Kisia and Associates Advocates, filed a replying affidavit dated July 31, 2019 on August 14, 2019. Although he admitted that together with his relatives they had cut down trees and prepared charcoal, he averred that the land occupied by the trees they cut down was not the suit land.
5.The respondents did not file any response to the application herein.
6.The application was heard by way of written submissions further to this court’s directions of January 18, 2023; see Order 51 Rule 16 of the Civil Procedure Rules, 2010 and Practice Direction number 33 of the Environment and Land Court (ELC) Practice Directions, 2014.
7.Accordingly, learned counsel for the applicant filed submissions dated March 27, 2023 on even date. Counsel submitted that the applicant has proved that the interested party caused wanton destruction to the trees on the suit land. That the interested party ought to be condemned to pay special damages amounting to Kshs 271,000/- as well as general damages.
8.The interested party did not file any submissions in respect to the application herein.
9.Initially, this application was filed in Migori Environment and Land Court. On February 15, 2022, the same was transferred to this court, upon its establishment, for hearing and determination.
10.I have duly considered the application, the interested party’s replying affidavit and the applicants’ submissions in their entirety. The principal issue that falls for determination is whether the interested party is in contempt of the orders issued by this court on September 25, 2018. Precisely, has the applicant established any basis for the orders sought to be granted?
11.On September 25, 2018, this honourable court made various orders with respect to the applicant’s Notice of Motion Application of even date, including:
12.The applicant contends that the interested party has failed to comply with the orders as listed in Paragraph 11 hereinabove. Therefore, he urged the honourable court to cite Samwel Okeyo Otindo for contempt of the court orders issued by this honourable court on September 25, 2018 and consequently commit him to civil jail and condemn him to pay special damages amounting to Kshs 271,000/- as well as general damages for the destruction of the ecosystem and environmental degradation.
13.It must be appreciated that contempt of court is that conduct or action that defies or disrespects authority of court. Black’s Law Dictionary 10th Edition at page 385, defines the term 'contempt' as:‘The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature...’
14.Section 5 of the Contempt of Court Act No 46 of 2016 confers jurisdiction on the superior courts to punish for contempt.
16.Indeed, the reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at that party.
18.Contempt of court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if that party were to succeed. This was aptly stated in Gatharia K Mutikika v Baharini Farm Limited  KLR 227, that:
19.In Samuel MN Mweru & Others v National Land Commission & 2 others  eKLR, Mativo J stated as follows:
20.It is basic to our Constitution that a person should not be deprived of liberty, albeit only to constrain compliance with a court order, if reasonable doubt exists about the essentials. In this regard, I am not satisfied that wilful disregard of the court order has been established by the applicants herein.
21.Applying the principles discussed herein above to the facts of this case, I am persuaded that the instant application is merited. The interested party was served in person with the court order as per the affidavit of service dated October 16, 2018 and sworn by Tom M. Obinga, a licensed court process server.
22.I direct that a Notice to Show Cause do issue to the interested party to show cause why he should not be committed to civil jail and pay the special damages amounting to Kshs 271,000/= as indicated in the assessment of tree and environmental destruction report by Kenya Forest Service dated March 25, 2019 and annexed to the instant application (POO- 2(a)).
23.Costs of this application to be in the cause.