Bett v County Assembly of Kericho & 4 others [2025] KEHC 3941 (KLR) | Contempt Of Court | Esheria

Bett v County Assembly of Kericho & 4 others [2025] KEHC 3941 (KLR)

Full Case Text

Bett v County Assembly of Kericho & 4 others (Petition E013 of 2024) [2025] KEHC 3941 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3941 (KLR)

Republic of Kenya

In the High Court at Kericho

Petition E013 of 2024

JK Sergon, J

March 27, 2025

Between

Hon. Eric Bett

Petitioner

and

County Assembly of Kericho

Respondent

and

The Speaker, County Assembly of Kericho

1st Citee

Hon. Cheruiyot Bett

2nd Citee

Hon. Haron Rotich

3rd Citee

Hon. Paul Bii

4th Citee

Ruling

1. This court has been called upon to determine a notice of motion dated 28th November, 2024 where the applicant is seeking the following orders;1. That this Honourable court be pleased to certify this application as urgent and assign a priority hearing, and also grant ex-parte orders in respect to prayers 1, 2,3, 4 and 5. 2.That this Honourable court be pleased to grant leave to commence Contempt proceedings against (i) Dr. Patrick Mutai, the 2nd Respondent/Speaker (ii)Hon Haron Rotich the 3rd Respondent and (iii) Hon. Cheruiyot Bett and (iv) Hon Paul Bii, jointly and severally, for disobedience of the Court’s Orders of 25th November 2024. 3.That an order do issue restraining the 1st, 2nd and 3rd Respondents and or any other person whosoever, whatsoever, jointly and severally, from withholding and or denying and or changing Petitioner’s dues as the Deputy Speaker and for orders staying any acts of redirecting, and or re-assigning the Deputy Speaker’s salaries, emoluments, allowances, privileges and benefits, to anybody else other than the Petitioner/Applicant, Hon. Eric Bett.4. That an order do issue that pending the hearing and determination of this application and the petition the Petitioner/Deputy speaker Hon.Eric Bett do retain, hold, serve, discharge all functions of the Deputy speaker, Kericho County and be remunerated all dues of a Deputy Speaker exclusively.5. That orders do issue to Messrs (i) Dr. Patrick Mutai/ 2nd Respondent, (ii) Hon.Haron Rotich /3rd Respondents, (iii) Hon.Cheruiyot Bett and (iv) Hon.Paul Bii to physically attend court’s next session jointly and severally to show cause on how they each propose purge any and or any further acts of contempt of the court’s orders including in terms of prayers “2” to “4” above, pending court’s further orders and directions inter-parties.6. That until the four (4) Citees (i)Hon.Dr.Patrick Mutai/2nd Respondent , (ii)Hon.Haron Rotich/3rd Respondent, (iii) Hon Cheruiyot, and (iv)Hon.Paul Bii have each personally purged any further contempt of court orders, to the satisfaction of the court, the said citees should be denied court’s audience.7. That an orders do issue finding the four citees, (i) Hon.Dr.Patrick Mutai/2nd Respondent ,(ii)Hon.Haron Rotich/3rd Respondent,(iii) Hon Cheruiyot, and (iv)Hon.Paul Bii to be jointly and severally in disobedience and contempt of Court Orders of 25TH November 2024, and are liable for court’s sanctions.8. That orders do issue for the (4) citees to show cause jointly and severally, why they should not be punished for disobedience of the Court’s Orders of 25TH November 2024. 9.That the four (4) citees (i) Hon.Dr.Patrick Mutai/2nd Respondent,(ii) Hon.Haron Rotich/3rd Respondent, (iii) Hon Cheruiyot and (iv)Hon.Paul Bii be jointly and severally, committed to Civil Jail for a period of up to six (6) months and or be fined to each personally pay Kshs 200,000. 00, or both, for being in contempt of court Orders of 25th November 2024. 10. That an order do issue that the 2nd Respondent/Speaker Hon.Dr.Patrick Mutai being in contempt of court orders is in consequence in breach of Chapter 6, Article 10, Article 232 of the Constitution, and the provisions of The Leadership and Integrity Act, Act No.19 of 2012 and is therefore not eligible to hold leadership and or public office.11. That all proceedings conducted on 25th November 2024 by the 1st, 2nd and 3rd Respondent and all other proceedings at the County Assembly /1st Respondents assembly including the elections and or swearing in of a new Deputy speaker, /Hon.Cheruiyot Bett, and the purport to remove the petitioner from the office of the Deputy Speaker all done in disobedience of the Court’s Orders of 25TH November 2024 be quashed, nullified, annulled and be struck off in toto.12. That the four[4] citees do personally pay and be surcharged for all losses, expenses and payments incurred by the County on account of the processes, expenses, and payments made on the process and purport that there is a new Deputy Speaker/Hon Cheruiyot Bett.13. That an order do issue declaring the election and the swearing in of Hon. Cheruiyot Bett on 26th November 2024 as a Deputy speaker as null and void.14. That the court be pleased to issue any other or further orders in the interest of justice to all parties.15. That the four (4) citees, in this application do pay costs to the Petitioner.

2. The application is based on grounds on the face of it and the supporting affidavit of Hon. Eric Bett the elected Deputy Speaker of the Kericho County Assembly from the year 2022 and the Petitioner/Applicant herein.

3. He avers that on the 25TH November 2024, this Honourable court issued orders in relevant parts stating;a.That pending inter partes hearing of the motion an order is issued to restrain the speaker of the county assembly of Kericho, 2nd respondent from scheduling for an election of a new deputy speaker and /or swearing in the said new deputy speaker.b.That pending inter partes hearing of the motion an order is issued to restrain the speaker of the county assembly of Kericho , the 2nd respondent and /or the 3rd Respondent from Acting on the Resolutions of the Special Sitting held on the 25th day of November 2024 purported to Have Removed the Deputy Speaker from office.c.That pending inter partes hearing of the motion an order is issued for the Petitioner -Deputy Speaker to retain, hold, serve and discharge all the functions of the Deputy speaker Kericho County.

4. He avers that the orders were served on 25th November 2024 vide an Email dated 25. 11. 2024 sent to the Respondents on their official emails addresses; patmutai@gmail.com, kcoassembly@gmail.com rotichharon2@gmail.com and epusepusmp@gmail.com and that the email addresses provided above are used by the respondents on a daily basis, the same emails were used on the 22nd of November 2024 to forward to the report on his removal and to summon him to a select committee as part of the process of removal. See the said annexure marked BE-3 page 17 to 18.

5. He avers that service was also effected by physical service at the 2nd Respondent/Speaker’s office, at the County clerk, and at the entrance to the County Assembly and county gate 10. He further avers that on the 26th November 2024, a court process server, Mr. Paul Kogo, was actively obstructed from entering the assembly to deliver physical court orders to the Speaker. Despite his persistent efforts, Mr. Kogo was forced to wait outside the assembly premises from 7:30 a.m. to 9:30 a.m. during which time the illegal swearing in ceremony occurred. This blatant obstruction accentuates the Respondents’ intended disregard for lawful authority and judicial processes. Annexed hereto is an affidavit sworn by Paul Kogo detailing the above, marked BE-3, 4(a) to 4(d)) page 17 to 37 showing efforts to serve, how the orders were clearly known and attempts made to avoid them.

6. He avers that the court orders were shared as correspondence on WhatsApp forum of all MCA’s and speaker where the order herein was pasted and posted before 6:00 pm, 25th November 2024, long before the purported election/acclamation and swearing in of the purported Deputy speaker.

7. He avers that on 26th November 2024, he and several other Members of the County Assembly (MCAs), who were aware of the orders and ready to comply were denied entry into the assembly premises by the Respondents, particularly at the orders of the 2nd Respondent. This deliberate action was intended to perpetuate an ongoing illegality, specifically the swearing-in of a new Deputy Speaker, in violation of lawful procedures and orders.

8. He avers that despite having Knowledge of the existence of court order the four [4] citees, herein (i) DR Patrick Mutai, the 2nd Respondent, (ii) Hon. Haron Rotich, 3rd Respondent, (iii) Hon. Cheruiyot Bett, purportedly elected Deputy Speaker and (iv) Hon. Paul Bii who tore the order, all worked, to especially accelerate the process of proceedings at County assembly by a select people, to pick a new Deputy speaker, and quickly moved on to swear the said Hon. Cheruiyot Bett as New Deputy speaker and proceeded to share their photos publicly. He further avers that the 2nd Respondent/Speaker having aggressively taken measures to disobey the court orders, to circumvent court process, and to benefit from wrongdoing, is ineligible to hold a public and or leadership role.

9. He avers that the dignity of this honourable court stands to suffer if orders issued are disobeyed and further renders the suit herein nugatory and that the actions and omissions of the Respondents led by the four (4) citees are malicious, contemptuous and wanton disrespect of the authority of this honourable court and it should be addressed with the seriousness it deserves.

10. Hon. Haron Rotich filed a replying affidavit in response to and in opposition to the Petitioner’s Notice of Motion Application dated 28th November, 2024.

11. He avers that he gave notice of, and moved the motion seeking the removal of the Petitioner from the office of the Deputy Speaker, Kericho County, for gross misconduct.

12. He avers that the said Motion was approved by the Clerk as meeting the requirements of Kericho County Assembly Standing Orders and he forwarded the same to the Speaker for approval.

13. He avers that on 20th November, 2024, he indeed moved the motion. It was debated by the members, and approved by members as captured in the Hansard of the day and that following the approval of the motion for the removal of the Petitioner as the Deputy Speaker, the Assembly voted to approve the appointment of 5 members of the Assembly to serve in the special committee formed to investigate the allegations highlighted in the Motion.

14. He avers that the special committee formed to investigate the allegations against the Petitioner sat from 21st November, 2024 and as the mover of the motion to attend before it and shed light on the allegations and that the Petitioner similarly appeared before the select committee to answer to the allegations. He further avers that vide a report tabled before the County Assembly on 25th November, 2024, the select committee found the allegations against the Petitioner in the Motion he brought and moved to have been substantiated and recommended the removal of the Petitioner as the Deputy Speaker, County Assembly of Kericho.

15. He avers that the Report of the Select Committee was extensively debated by the members of the 1st Respondent Assembly and 32 members of the Assembly voted in support of the Motion, effectively removing the Petitioner as the Deputy Speaker of the County Assembly and that at the commencement of the sitting, and throughout the sitting, he was neither served nor made aware of any court order injuncting the assembly from proceeding with the business of the day to wit: the election and swearing of a new deputy speak and further that at no point in the period leading to the removal of the Petitioner from office was I made aware of any order barring the consideration of the motion for the Petitioner's removal from office.

16. He avers that the events that transpired at the County Assembly of Kericho on 25th and 26th November, 2024 are as captured in the Hansard of the two days.

17. The 1ST, 2ND & 3RD citees filed a replying affidavit in response to, and opposition of the Petitioner’s Notice of Motion Application dated 28th November, 2024 that was sworn by Dr. Patrick Mutai the 2nd Respondent/ 1st Citee herein, the speaker of the 1st Respondent and therefore competent and authorised to make and swear the Affidavit with the authority of the 2nd, 3rd and 4th Citees to swear the Affidavit on their behalf.

18. He avers that the contempt proceedings herein relate to the alleged disregard of the orders issued by this Court on 25th November, 2024.

19. He avers that from the onset, it is important that he underscores that the orders alleged by the Petitioner to have been disregarded by himself and co-Citees were issued by the Court in the evening of 25th November, 2024, the Petition and the Application giving rise to the said orders having been filed in the afternoon of the same day and that by the time the said orders were therefore issued, the motion to remove the Petitioner had been debated and passed by the members of the 1st Respondent Assembly as at 10. 20 am, 25th November, 2024. He set out a tabulated breakdown of the votes on the Motion to remove the Petitioner herein.

20. He avers that soon after the conclusion of the proceedings of 25th November, 2024, the Clerk of the Assembly advertised the vacancy in the office of the Deputy Speaker and invited the applicants to submit their applications by mid-day of 25th November, 2024.

21. He avers that as at mid-day of 25th November, 2024, only one applicant being Hon. Cheruiyot Bett, the 3rd Citee herein, had tendered his application seeking to be elected as the Deputy Speaker of the 1st Respondent Assembly.

22. He avers that being unopposed, the 3rd Citee automatically became the 1st Respondent’s Deputy Speaker and only awaited the formal communication of his election on 26th November, 2024 and therefore by the time the orders of the Court were issued in the evening of 25th November, 2024, the said orders had been overtaken by events.

23. He avers that the law on contempt of court is settled and that the Petitioner is duty-bound to demonstrate that:(a)the Citees were aware of the existence of the orders alleged to have been disregarded/breached;(b)the terms of the order were clear, unambiguous and binding; © the Citees acted in breach of the terms of the order; and(d)the Citees’ conduct was deliberate.

24. He avers that it is trite law that In the light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to their attention as proof that he/she had personal knowledge of said order and that the Petitioner has not only failed to demonstrate that they were aware of the terms of the existence of the orders of the Court but also that any of the citees acted in breach of the said orders. Even if there was proper service, which was not done, the said orders were already overtaken by subsequent events which he had set out.

25. He avers that the proceedings before this Court are proceedings between the Petitioner and the Respondent, and so the orders issued by the Court were orders in personam which, with respect, were not binding on the 3rd and 4th Citees who, in any event, were not even served with the said orders.

26. He avers that by the time the orders were issued, the 2nd Citee had long moved the motion for the removal of the Petitioner. He therefore had no role in implementation of the report of the special committee that investigated the conduct of the Petitioner other than being a witness.

27. Cheruiyot Bii the 3RD Citee filed a replying affidavit replying affidavit in response to, and opposition of the Petitioner’s Notice of Motion Application dated 28th November, 2024 a member of the County Assembly representing Ainamoi Ward, the Deputy Speaker, and the 3rd Citee herein.

28. He avers that he assumed the office of the Deputy Speaker following the removal of the Petitioner from the office and that the two Applications filed therewith, relate to the events leading to the removal of the Petitioner from the office of the Deputy Speaker, County Assembly of Kericho following a motion moved by the 3rd Respondent herein, and the circumstances under which he assumed the office.

29. He avers that on 25th November, 2024, following a special sitting in which 32 members of the assembly voted to remove the Petitioner from office, 13 voted against it, with 1 abstention, the Clerk of the Assembly declared a vacancy in the office of the Deputy Speaker.

30. He avers that following the declaration of the vacancy, he submitted his nomination papers, and was subsequently elected by the assembly to fill in the vacancy. He subsequently assumed office after being sworn in in accordance with the provisions of the Kericho County Assembly Standing Orders and that restraining him, a duly elected deputy speaker, from discharging his duties would result in de facto suspension of Section 9A of the County Governments Act which places the responsibility of deputizing the Speaker on the deputy speaker.

31. He avers that he participated in all the proceedings leading to the removal of his predecessor, the Petitioner, and he conscientiously believed that the members of the County Assembly exercised their powers as per the law in effecting the removal and replacement of the Petitioner as their deputy speaker.

32. He avers that at the time he assumed the office of the Deputy Speaker, he had neither been made aware of nor served with any orders barring him from subjecting himself to the swearing in process and subsequent assumption of the office of the Deputy Speaker of the County Assembly.

33. He avers that an Applicant in contempt proceedings must prove to the required standard that: - a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; b) The defendant had knowledge of or proper notice of the terms of the order; c) The defendant has acted in breach of the terms of the order; d) The defendant's conduct was deliberate and that the Applicant has woefully failed to demonstrate any of these elements as against me.

34. He avers that based on the factual rendition set out above, it is eminently obvious that he did not act in breach of any order served on him prior to the election and swearing in taking place, and whose terms were clear and unambiguous. In any case, it is common ground that the order was served way after the assembly had concluded the business of the day and he had been sworn in and assumed the office of deputy speaker.

35. He avers that the burden of proof in contempt proceedings lies on the Applicant, and that the Applicant herein has failed to discharge it.

36. He avers that a finding of guilt for contempt of court must be exercised with great circumspection, and an order committing a party for contempt of court should be adopted as a measure of last resort and in the clearest of cases. This is not one of such cases.

37. He avers that the test for when disobedience of a civil order constitutes contempt is pegged on whether the breach was committed ‘deliberately and mala fide.’ The Applicant has not demonstrated this. He further avers that contempt proceedings being quasi-criminal, require a higher standard of proof than in normal civil cases, and one can only be committed to civil jail or penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability.

38. He avers that the totality of the foregoing is that the Applicant’s Notice of Motion Application is devoid of merit, frivolous, vexatious and abuse of court process and should be dismissed with costs.

39. Paul Bii the 4TH Citee filed a replying affidavit replying affidavit in response to, and opposition of the Petitioner’s Notice of Motion Application dated 28th November, 2024, a member of the County Assembly and the 4th Citee herein.

40. He avers that on the material day, access to the County Assembly precincts had been blocked by the Petitioner's Motor Vehicle of Registration No. KDL 462K, and other people, he later learnt had been mobilized by the Petitioner and that it took the intervention of the Clerk for them to gain entry into the County Assembly.

41. He avers that it has not been demonstrated that the person whose photo is annexed to the Applicant's Affidavit in support of the Notice of Motion Application and alleged to be tearing a court order pinned at the gate to the County Assembly is himself.

42. He avers that he participated in the proceedings leading to the removal of the Petitioner from the office of the Deputy Speaker of the County Assembly and that as reflected in the Hansard of the day, 32 members voted in support of the motion and further that the 32 members who voted in support of the motion surpassed the threshold of two thirds required to remove the deputy speaker from office.

43. He avers that he was not aware of any court order that had been served upon the assembly or himself as of the time they debated the motion, voted, and elected a new deputy speaker barring the implementation of the resolution of the assembly to remove the Petitioner from office, or taking of steps to replace him.

44. He avers that it is trite law that when a person is bound to prove the existence of any fact the burden of proof lies on that person. In regard to service of documents, and the Court Order, the burden bearer is therefore the Petitioner who asserts that he effected service and I tore a court order.

45. HE avers that the consideration of the motion for removal of the Petitioner from the office of the Deputy Speaker was procedurally and legally sound, and he confirms that the proceedings as captured in the Hansard are a true reflection of what transpired at the County Assembly.

46. He avers that the reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with placating the applicant who moves the court by taking out contempt proceedings. He further avers that the present Application seeks is far from the object of punishment for contempt of court. The Applicant seeks to use the present Application to achieve collateral purposes which this Court should not countenance.

47. He avers that it has not been demonstrated by the Applicant that he had demeaned the integrity and authority of this Court, he had not derided the rule of law as alleged by the Applicant.

48. He avers that no order requiring a person to do or abstain from doing any act may be enforced by contempt unless a copy of the order has been served personally and endorsed with a penal notice informing him/her that if he/she disobeys the order, he/she is liable.

49. He aver that as can be gleaned from the record, to date, he had not been served with the Orders of the Court which the Applicant seeks to cite him for being in contempt and therefore in the circumstances, it would be unfair for the him to be punished first and then accorded a hearing later and that in any event the Applicant had established no basis upon which his committal would be sustained in any case.

50. Dr. Patrick Mutai the 2nd Respondent filed a supplementary affidavit with leave of the court to clarify the averments under paragraph 13 of his affidavit sworn on 12th December, 2024, that it is 32 members who voted in support of the motion and not 33 as he had inadvertently indicated in the affidavit in reference to the Hansard annexed to his affidavit of 12th December, 2024 and marked as PM-8.

51. He avers that the Clerk of the County Assembly, the Deputy Clerk of the County Assembly, and the Hon. Isaac Matker who were present during the proceedings have sworn affidavits confirming the facts deponed to in my affidavit. (Annexed herewith and marked PM-001 are bundle of affidavits sworn by Martin Epus Patrick, the Clerk of the County Assembly, Sharon C. Mibey, the Deputy Clerk of the County Assembly, and Hon. Isaac Matker, a member of the County Assembly).

52. He avers that when a person is bound to prove the existence of any fact the burden of proof lies on that person and that in regard to service of documents, and the Court Order, the burden bearer is therefore the Petitioner who asserts that he effected service and that he deliberately acted in violation of the court orders and that the Petitioner has woefully failed to discharge this burden and that in the circumstances the Petitioner/Applicant has established no basis upon which his committal would be sustained in any case.

53. This court also takes note of an affidavit collectively sworn by 15 Members of the Kericho County Assembly in support of the petitioners case and averments.

54. This court directed that the parties file written submissions.

55. The applicant complied and filed submissions in which he contended that the court orders dated 25th November, 2024 were obtained and served and they were known to the Respondent’s long before they purported to elect the Petitioner’s replacement by acclamation, acting on a resolution of special sitting held on 25th November 2024, and swearing the alleged successor, 3rd Citee.

56. The Petitioner stated that the instant application met the criteria for contempt and cited In Pubs, Entertainment And Restaurants Association of Kenya & 2 others v National Assembly & 5 others; Kenya Association of Manufacturers (Interested Party) (Petition 24, E491 & E403 of 2021 (Consolidated)) [2024] KEHC 10396 (KLR) (26 August 2024) (Ruling) [2024] KEHC 10396 (KLR) where the Court held that:- “To find one guilty of contempt of Court, two fundamental elements must be proved, namely knowledge of the order and willful act of disobedience.” and cited the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR where the Court at various paragraphs the court stated that:-“It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson –vs- Hadkinson, (1952) ALL ER 567, “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular.”

57. The Petitioner submitted that courts have increasingly held that contempt is proven if there is disobedience after a party is aware of the Court Order. It is not a condition precedent that the order must be served. The decision of whether or not a party is aware is a matter of fact to be decided by each court in each individual case. The Petitioner contended that the four (4) Citees were aware of the order, in addition to having been served. Bryce Broadcast & Technologies (K) Ltd v Makotsi & Another [2024] KEHC 2152 (KLR), the Court held that:- “The jurisprudence now favors knowledge of the existence of Court orders as opposed to strict personal service. In the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR the Court of Appeal posed the question as to whether knowledge of a Court order or judgment by an Advocate of the alleged contemnor would be sufficient for purpose of contempt proceedings and answered the question in the affirmative…”

58. The 1ST, 2ND, 3RD & 4TH citees filed submission in respect to the Petitioner’s Notice of Motion Application Dated 28th November, 2024.

59. They conceded that the orders issued by the Court on 25th November, 2024 restrained the 2nd Respondent as the Speaker of the County Assembly of Kericho from scheduling for an election or swearing of a new deputy speaker; or acting on the resolutions of the special sitting of the 1st Respondent Assembly held on 25th November, 2024; and directing that the Petitioner continues to retain, hold, serve and discharge the duties of the deputy speaker. They contended that by the time the orders were issued, the Petitioner had been removed from office and his position declared vacant and an application to fill the position was received. This is evident from the Hansard proceedings of the Kericho County Assembly.

60. They contended that the standard of proof required in cases of contempt is higher than that required in an ordinary civil case. Before a finding of contempt can be made, there must be a demonstration of willful and deliberate disobedience of a court order. In Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 it was 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 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 an order for committal or sequestration, whether the offender is a party to the proceedings or not.”

61. They contended that the Petitioner has not satisfied the threshold for contempt of court. It is argued that it has not been aptly demonstrated to the required standard of proof that the Citees were had knowledge and proper notice of the orders of the Court, or that the orders were binding on them jointly and severally, or that they acted in breach of the orders of the court, or that their actions were deliberate.

62. Having considered the application, responses and submissions by the parties, this court finds that the sole issue for determination is whether the four citees,i.Hon.Dr.Patrick Mutai/2nd Respondent,ii.Hon.Haron Rotich/3rd Respondent,iii.Hon Cheruiyot, andiv.Hon.Paul Bii to be jointly and severally in disobedience and contempt of Court Orders of 25TH November 2024, and are liable for court’s sanctions.

63. This court has considered the parties’ respective case. On one part, it is the petitioner’s case, that the court orders dated 25th November, 2024, were served via official email addresses, physical service and shared as correspondence on WhatsApp forum of all MCA’s and the speaker and therefore the orders were known to the Respondent’s long before they purported to elect the Petitioner’s replacement by acclamation, acting on a resolution of special sitting held on 25th November 2024, and swearing the alleged successor, the 3rd Citee. On the other part, it is the respondents and citees case, that the report of the Select Committee was extensively debated by the members of the 1st Respondent Assembly and 32 members of the Assembly voted in support of the Motion, effectively removing the Petitioner as the Deputy Speaker of the County Assembly on 25th November, 2024 and that at the commencement of the sitting, and throughout the sitting, they were neither served nor made aware of any court order barring the consideration of the motion for the petitioner's removal from office or injuncting the assembly from proceeding with the business of the day to wit: the election and swearing of a new deputy speaker. It is the respondents and citees case that soon after the conclusion of the proceedings of 25th November, 2024, the Clerk of the Assembly advertised the vacancy in the office of the Deputy Speaker and invited the applicants to submit their applications by mid-day of 25th November, 2024 and that one applicant being Hon. Cheruiyot Bett, the 3rd Citee herein, had tendered his application seeking to be elected as the Deputy Speaker of the 1st Respondent Assembly and being unopposed, the 3rd Citee automatically became the 1st Respondent’s Deputy Speaker and only awaited the formal communication of his election on 26th November, 2024 and therefore by the time the orders of the Court were issued in the evening of 25th November, 2024, the said orders had been overtaken by events. The jurisdiction of the superior courts to punish litigants for contempt of court when they fail or refuse to obey court orders is aimed at protecting the dignity and legitimacy of the courts. The test applicable in an application for contempt, was well set out in Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR where the court held that:- “ 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 willfulness 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.”

64. Having considered the arguments and evidence adduced by both parties, it is clear to this Court that the orders it issued on 25th November, 2024 were served upon the Respondents (Citees).

65. The Respondents seemingly acted in defiance of the aforesaid orders by acting on the resolutions of the County Assembly on 25th November, 2024 by electing and swearing in the successor to the Petitioner on 26th November, 2024.

66. In Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR (supra) the court observed as follows; “It is a crime unlawfully and intentionally to disobey a court order.This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court. The offence has in general terms received a constitutional ‘stamp of approval,’ since the Rule of Law – a founding value of the Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained.’ In the hands of a private party, the application for committal for contempt is a peculiar amalgam, for it is a civil proceeding that invokes a criminal sanction or its threat. And while the litigant seeking enforcement has a manifest private interest in securing compliance, the court grants enforcement also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law. The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide.’ A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). These requirements – that is the refusal to obey should be both willful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent. ”

67. Given the chronology of events on the material day, it is clear that the court orders were disobeyed. Consequently, the citees namely:- Dr. Patrick Mutai, Hon. Haron Rotich, Hon. Cheruiyot Bett and Hon Paul Bii are found guilty for contempt of Court Orders. They are now required to submit in mitigation to enable this court determine the appropriate sanction.This Court has been beseeched to grant the orders sought in prayers 10, 11, and 13 of the instant motion, i.e. “10. THAT an order do issue that the 2nd Respondent/Speaker Hon.Dr.Patrick Mutai being in contempt of court orders is in consequence in breach of Chapter 6, Article 10, Article 232 of the Constitution, and the provisions of The Leadership and Integrity Act, Act No.19 of 2012 and is therefore not eligible to hold leadership and or public office.11. That all proceedings conducted on 25th November 2024 by the 1st, 2nd and 3rd Respondent and all other proceedings at the County Assembly /1st Respondents assembly including the elections and or swearing in of a new Deputy speaker, /Hon.Cheruiyot Bett, and the purport to remove the petitioner from the office of the Deputy Speaker all done in disobedience of the Court’s Orders of 25TH November 2024 be quashed, nullified, annulled and be struck off in toto.13. That an order do issue declaring the election and the swearing in of Hon. Cheruiyot Bett on 26th November 2024 as a Deputy speaker as null and void.”

68. This Court is of the opinion that the aforesaid prayers cannot be granted vide the instant application. The orders require a substantive application and or action. There may be need to amend the substantive petition to include such prayers. Consequently, this court declines to grant the orders sought at this stage of the proceedings. Costs of the Application to be in the cause.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 27TH DAY OF MARCH, 2025. ………………………J.K. SERGONJUDGEIn the Presence of:-C/Assistant – RutohKiplagat, Miss Mibei and Kibet for CiteesMiss Waweru holding brief for Katwa Kigen and Mitey for the Petitioner