Mzalendo Kibunjia escapes jail in case to open access road

National Museums of Kenya (NMK) Director-General Mzalendo Kibunjia escaped jail on Thursday as a court dismissed a businessman's application for him to be punished on allegations of contempt.

Mr Segior Lieman had asked the Environment and Land Court to commit Dr Kibunjia to six months in civil jail for allegedly disobeying an order to open an access road.

The access road is said to fall within the Mtwapa Ruins, or the Mtwapa Heritage Site, which is listed as a monument.

ARGUMENTS

The complainant had told Environment and Land Court judge Anne Omollo that the contemnor had continued to disobey an order issued on June 12, 2015.

Mr Lieman contended that since July 30, 2015, the NMK had not taken any steps to open the access road.

Dr Kibunjia denied the contempt accusation, explaining in an affidavit that the NMK had been unable to comply because opening the road, as per surveyed maps, would result in contravention of its mandate.

He noted that the organisation's role is to manage, protect and conserve monuments, where Kenya's cultural and national heritage is concerned.

REPORT

According to court documents, this explanation was premised on a report by the NMK which confirmed that the road passed through a path filled with natural trees, dense bushes and ancient ruins on either side, whether standing or buried.

The NMK said it had no funds for clearing the bushes and trees along the access road.

It added, however, that "since the plaintiff rejected the recommended alternative access road as per the report, the defendant allowed the complainant to clear the trees along the surveyed road under our supervision".

The organisation further said that its team supervised the exercise to ensure no encroachment and that a rescue team salvaged the archaeological materials that were excavated.

A report filed in court indicated that a substantial part of the road was cleared and that the process was ongoing.

The suit against Dr Kibunjia was filed after the process stalled.

NO ORDER

In her ruling, Justice Omollo noted that the presumption by Mr Lieman - that Dr Kibunjia was under duty pursuant to the court order - was made in error.

She said it was clear that the court issued no such directive.

“In summary, I find that the application for contempt by the plaintiff was prematurely brought as the acts of contempt complained of had not matured. Accordingly, I decline to commit Dr Kibunjia as prayed. The application is hereby dismissed,” Justice Omollo ruled.

She also noted that the law says a party cannot be punished for unproven contempt and that the burden of proof required in such proceedings was above the standard applicable in civil cases.