BY SAM ALFAN.
Auctioneer Zackaria Baraza has won a reprieve after the Court of Appeal suspended decision by Environment and Land Court seeking to punish for disobeying a court order.
A bench of three judges suspended the proceedings pending before the lower court for 45 days, to allow him pursue an appeal.
Justice David Musinga, Kathuriam M’Inoti and Dr K.I Laibuta said Baraza had convinced them to suspend the proceedings as the auctioneer pursues his appeal.
The judges noted that Baraza was on the brink of being sentenced to two years’ imprisonment or slapped with a fine of Sh2 million over a case he has contested.
The judges added that a served jail term cannot be undone.
“Accordingly, we direct that three shall be an order of stay of proceedings for a period of 45 days from the date of this ruling. Within that period, the applicants must file and serve the record of appeal for fast-tracked hearing of the appeal,” ruled the Judge’s.
The court said the suspension was conditional order of stay of proceedings so as to ensure that the intended appeal is heard and determined expeditiously and without delay.
The auctioneer rushed to the appellate court after ELRC judge Oscar Angote found him in contempt of court for disobeying a court and directed him to appear before the judge for mitigation and sentencing.
Baraza through his company Suima Auctioneers have been accused of demolition a couple’s house in Westlands allegedly using a forged court order.
The judges said that an arguable appeal is not one that must necessarily succeed at the hearing.
He moved to the Court of Appeal saying his case was not frivolous and should be considered by the court.
Among the grounds he has raised are whether he was afforded a fair hearing before he was adjudged in contempt of court. “We are persuaded that the intended appeal is arguable,” the judges said.
The auctioneer Zacharia Baraza moved to the Appellate court to challenge plans by the Environment and Land court to sentence him for demolishing the property despite a court order.
Justice Oscar Agote last year found auctioneer Baraza of contempt of court for going against the court orders to demolish Sh80 million house belonging to old couple in Westlands.
The Judge found that Baraza demolished the said house despite an order to stop the demolition.
Lariak Properties Ltd and Baraza and his company filed an application before the appellate court challenging Justice Angote’s decision that found him in contempt of court.
They filed the application through lawyer Duncan Okatch and further sought to suspend the proceedings before the Environment and Land court.
“Unless the application for stay is granted , the intended appeal shall be rendered nugatory as the superior court has already determined that him applicants are guilty of contempt of court orders and shall sentence him within the provisions of section 29 of the Environment and Land Court Act which provides that any person who fails to obey orders or directions issued under the Act commits an offence and shall be liable to a fine not exceeding Kenya shillings twenty million or two years imprisonment both,” they urged the court.
Baraza wants the court to suspend the proceedings before the Environment and Land Court between Lariak Properties Ltd and Metro Pharmaceuticals Ltd.
He is also pleading with the court of appeal to arrest Justice Angote ruling to rescue him from facing civil or paying a fine.
“This court be pleased to stay the ruling of justice Angote delivered on the 25th day of November 2022 and any further proceedings in the Nairobi Environment and Land Court Misc. No.19 of 2022-Lariak Properties Ltd and Metro Pharmaceuticals Ltd,” urged Baraza .
Lawyer Okatch told the appellate court appellants were condemned unheard despite the fact that contempt allegation are quast criminal in nature and therefore standard of proof is higher than that balance of probability.
Okatch further told the court that Environment and Land Court lacked jurisdiction to exercise supervisory jurisdiction.
“Judge Angote usurped the jurisdiction of the High court and failed to appreciate that the environment and Land Court has no supervisory jurisdiction over subordinate courts and can only deal with appeals arising from the decisions of the subordinate courts,” submitted lawyer Okatch.
Okatch submitted it was apparent that same supervisory jurisdiction that the parliament took away from the ELC cannot be conferred under sections 3 and 18(1) (b) of the civil procedure Act as such act is unconstitutional.
