1. This ruling is in respect of an application dated 3rd October 2025, the plaintiff/applicant, Albert Kimutai through Victor Kipkemboi Advocate against the 2nd defendant/respondent, Sammy Kosgei for orders thus;
a) Spent
b) The Honourable court be pleased to find Sammy Kosgei, the Respondent to be in contempt of the orders made and issued by this Honourable court on 24th day of March 2025.
c) That upon finding of contempt, the Honourable court be pleased to commit the said Sammy Kosgei to civil jail for at least six months and/or to be fined accordingly.
d) That the Honourable court be pleased to order the officer commanding station (OCS) Kapsabet police station to ensure compliance with the court orders.
e) Costs be provided for.
2. The application is premised upon the applicant’s affidavit of nine paragraphs sworn on even date and three accompanying documents marked ‘AK1, AK2 and AK3’ being court order dated 24th March 2025 issued on 25th March 2025, affidavit of service and Police Occurrence Book(OB) respectively. In a nutshell, the applicant averred, inter alia, that on 25/03/2025, this Honourable Court issued interim injunctive orders (AK1) restraining the Respondent from trespassing, encroaching, constructing or interfering in any way with the suit land reference number Kapsabet/Township parcel No. 92. That the said orders were duly served upon the Respondent on 3rd April 2025 as captured in the affidavit of service (AK2). That despite full knowledge of the said orders, the 2nd Defendant/Respondent willfully disobeyed them by mobilizing and sending goons to the suit land; harassing and threatening the Applicant’s employees working thereon; and interfering with the Applicant’s quite possession of the suit land hence, precipitating this application.
3. The 2nd defendant/respondent was duly served with the orders on 3rd April 2025 at 12.20 pm by Elijah Kimutai Murei authorized court process server as disclosed in the affidavit of service sworn on 7th April 2026 (AK2) annexed to the affidavit in support of the application.
4. It is therefore, notable that the respondent was granted an opportunity to respond to the application but opted otherwise; see Festus Ogada vs Hans Mollin (2009) eKLR.
5. Mr Kipkemboi learned counsel for the applicant referred to what is observed in paragraphs 3 and 4 hereinabove and implored the court to allow the application accordingly.
6. In that regard, has the applicant established his case to entitle him to the orders sought in the application?
7. The application pertains to the interim injunction orders restraining the respondent/2nd defendant from trespassing, encroaching, constructing or interfering in any way with the suit land, KAPSABET/TOWNSHIP PARCEL NO. 92 (The suit land herein) without the consent of the plaintiff/applicant pending the hearing and determination of the application dated 19th March 2025 by this Court (CK Yano J) made on 24th March 2025.
8. No doubt, this court has the authority to punish for contempt of court under section 5 (1) of the Judicature Act Chapter 8 of the Laws of Kenya as read with section 29 of the Environment and Land Court Act 2015 (2011). Indeed, Contempt of Court is quasi-criminal character. Contempt of Court is a powerful rare remedy where the applicant must establish that the respondent had knowledge of clear contents of the order of court and deliberately disobeyed the same as laid down in the English Court of Appeal decision in the case of Hadkinson vs Hadkinson {1952} P. 285; {1952} 2 All ER 567 that;
‘.........it is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged.........’
9. This Honourable court’s orders made on 24th March 2025 are in plain English language, an official language in Kenya and the official language of this court under Article 7 (2) of the Constitution of Kenya 2010 and section 23 of the Environment and Land Court Act 2015 (2011) respectively.
10. Generally, personal service in matters of contempt of court is a requirement. However, knowledge supersedes personal service. Therefore, where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary as noted in Basil Criticos vs Attorney General & 8 others (2012) eKLR and Teachers Service Commission vs Kenya National Union of Teachers & 2 others (2013) eKLR.
11. In the case of Jacinta Njeru Kaitha vs David K. Kanyiri {2015} KECA 647 (KLR), it was held that in a contempt of court case, the complainant must provide strict, unquestionable proof that the respondent was personally served with both the court order and the required penal notice in a timely fashion. That the penal notice must be prominently displayed to warn the alleged contemnor of the consequences of disobedience; see also Edward Njuguna Kangethe-vs-Joel Kiema Mutinda & another (2014) eKLR.
12. In Shadrack Arap Baiywo vs Bodi Bach (1987) eKLR, the Court of Appeal opined;
‘There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.’
13. The orders of 24th March 2025 were clear and duly served upon the 2nd Defendant/Respondent on 3rd April 2025 as noted in paragraphs 3 and 4 hereinabove. The respondent/2nd defendant had knowledge or properly notified of the existence of the orders as held in Baiywa case (supra) and the orders contained a penal notice at the foot of the same conveying the respondent’s knowledge or notice of the orders. So, 2nd Defendant/Respondent has deliberately disobeyed them as demonstrated in the application in entirety.
14. Wherefore, the application dated 3rd October 2025 has merit and hereby allowed thus;
a) Sammy Kosgei, the Respondent/2nd defendant is in contempt of the orders made and issued by this Honourable court on 24th day of March 2025.
b) The said Sammy Kosgei be commited to civil jail for at least six months and/or to be fined appropriately on 29th June 2026 and he be served accordingly.
c) The officer commanding station (OCS) Kapsabet police station to ensure compliance with the court orders.
15. Costs be in the cause.
16. It is so ordered.
DATED and DELIVERED at KAPSABET this 10TH day of JUNE 2026
G M A ONGONDO
JUDGE
PRESENT;
Mr Kipkemboi learned counsel for the applicant/plaintiff
Walter, Court Assistant