The Kisumu Law Courts / Handout
The Environment and Land Court in Kisumu has fined Kisumu City Manager Abala Wanga Sh500,000 for contempt of court after finding that he disobeyed orders barring interference with the disputed Ofafa Memorial Hall property.
In a ruling delivered on July 9, Justice Edward Karoph Wabwoto ordered Wanga to pay the fine within 30 days or serve a 30-day jail term.
"The Contemnor (Wanga) is hereby sternly warned that any further disobedience of the orders of this court shall attract far more severe consequences, including committal to civil jail," the judge said.
According to the ruling the court had on December 15, 2023, issued orders restraining the Kisumu County Government, its officers and agents from repossessing the disputed property, demolishing structures, evicting tenants or otherwise interfering with the plaintiffs' occupation of the premises pending determination of the case.
Justice Wabwoto found that despite being served with the order, Wanga led a demolition and eviction exercise at the property on December 19, 2023, four days after the injunction was issued.
The judge said structures erected by plaintiffs Calvin Ariko Lukio, Lawi Raburu Javan and another party were demolished, tenants were evicted and the county government subsequently took possession of the property.
The plaintiffs filed contempt proceedings on January 18, 2024, and the court later found Wanga guilty of contempt before directing him to appear for mitigation.
In mitigation, Wanga told the court that his role arose from his administrative responsibilities over approvals and land rates. He said the county only dealt with assessing and collecting land rates and was not responsible for determining ownership of the disputed property.
He told the court that rates arrears on the property stood at about Sh18 million and maintained that some structures on the land were illegal and posed a security risk. Wanga denied evicting tenants, said he had no intention of harming anyone and told the court that he did not interfere with the main building.
He further said the county had attempted mediation, used its own funds to replace some facilities and offered alternative spaces to affected occupants, except for one church.
However, the plaintiffs, through their advocate Ochieng, argued that there was a valid court order prohibiting any interference with the property and that Wanga could only purge the contempt by restoring them to the premises. They also said the alleged mediation was not sanctioned by the court and had not resolved the dispute.
Wanga's lawyer, Onsongo, urged the court to impose a non-custodial sentence, saying his client was remorseful and had taken steps to mitigate the effects of the demolition.
In sentencing, Justice Wabwoto said public officers are expected to uphold the rule of law and obey court orders.
"For the rule of law would be an empty promise if those entrusted with public power were at liberty to disregard the orders of the courts," he said.
The judge rejected Wanga's explanations as justification for failing to comply with the injunction, saying issues such as alleged rates arrears, the legality of structures and security concerns should have been presented before the court rather than acted upon unilaterally.
"Parties should not take it upon themselves to decide which court orders are to be obeyed and which ones overlooked," the judge said.
While the court acknowledged Wanga's mitigation efforts, including providing alternative space to some of those affected, Justice Wabwoto ruled that a warning alone would undermine respect for court orders.
"In my considered view, a monetary penalty, to be borne by the contemnor (Wanga), coupled with firm compliance directions, will meet the twin punitive and coercive objects of sentencing for contempt," he said.
The judge said the penalty does not relieve Wanga or the Kisumu County Government of their obligation to comply with the existing court orders, adding that the earlier order requiring restoration of possession and control of the disputed property remains in force.
