Court grants auctioneer reprieve in two-year jailterm over contempt
Mr Zachary Baraza of Siuma Auctioneers Ltd (left). The auctioneer was scheduled to be jailed for two years for demolishing a couple’s house worth Sh70 million in Westlands, Nairobi.
The Court of Appeal has granted a temporary reprieve to an auctioneer who was scheduled to be jailed for two years for demolishing a couple’s house worth Sh70 million in Westlands, Nairobi.
Suspending the sentencing of Zachary Baraza for 45 days, appellate judges Daniel Musinga, Kathurima M’Inoti and Dr Immana Laibuta said he needs to be given time to challenge the jurisdiction of the Environment and Lands Court (ELC) to exercise supervisory duties over magistrates courts.
The judges said the question of jurisdiction is pertinent and should be determined first. Baraza argued only the High Court can supervise subordinate courts.
Mr Baraza, who is facing a robbery with violence case before the Milimani Chief Magistrate Court, was convicted by Justice Oscar Angote, the head of the ELC Court on November 25, 2022 for contempt of court.
In his appeal, Baraza says he was not given an opportunity to be heard having raised an objection to the jurisdiction of ELC exercising supervisory duties over subordinate (magistrate) courts.
He says he was not cited for contempt and therefore he had nothing to say.
“The application by Baraza is by all standards fairly alarming as the respondents (Metro Pharmaceuticals Ltd) made serious allegations that the auctioneer had used forged or unlawful eviction order from the magistrate's court to demolish the residential house,” Judges Musinga, M’Inoti and Dr Laibuta stated.
Justice Angote called for the file from the magistrate’s courts when Baraza was charged to give fresh directions in the matter.
Baraza challenged the decision by Justice Angote saying the ELC division of the high court has no jurisdiction to exercise supervisory duties to subordinate courts.
The judges said Baraza has established he has an arguable appeal.
“We are persuaded that the intended appeal is arguable. We are constrained at this stage to say no more, lest we embarrass the bench that ultimately hears the appeal,” ruled Judges Musinga, M’Inoti and Dr Laibuta.
They added: “On whether the intended appeal will be rendered nugatory if the stay of proceedings is not granted, we are equally persuaded it will.”
The judges noted Baraza is on the brink of being sentenced to two years imprisonment or to a fine of Sh2 million on the basis of a process that is impugned in the intended appeal.
“We shall only give a conditional order of stay of the proceedings before the ELC Court so as to ensure that the intended appeal is heard and determined expeditiously and without delay,” ruled the judges.
They went ahead to direct that there shall be an order to stay the proceedings for 45 days from February 24, 2023.
The court directed Baraza to file the record of the appeal to fast-track the process.
Failure to file and determine the appeal within 45 days, the order of stay shall automatically lapse.
When police arraigned Baraza they told senior principal magistrate Gilbert Shikwe that he (Baraza) led more than 25 people to descend on the property of Niraj Shah and his wife Avani Shah located on School Lane in Westlands Nairobi on November 8,2022 and demolished it.
