1. Committal to civil jail for contempt, is generally considered to be a writ of last resort and it is coercive in its function rather than punitive. It is available only where the person against whom it is sought to be issued is in contempt of court through having wilfully disobeyed its order. If the writ does issue, it temporarily places property of the contemnor into the hands of the sequestrators and denies him the right to enjoy or dispose of the property until a further order of the court. As the writ is very drastic in form, the courts have generally been reluctant to allow the writ to issue except in the clearest cases and will not normally issue the writ unless the conduct has been intentional or reckless. The conduct must be shown to be wilful. Consequently, the power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. It is also necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness.
2. Before the lower court was Notice of Motion dated 24th July 2023 under sections 1A and 1B of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and other enabling provisions of the law, seeking substantively one prayer; that the Defendant/Respondents herein be cited for contempt of Court for breach of the Injunctive Order issued on 8th November, 2019 and be committed to prison for such a period of time not exceeding six months and /or they purge the contempt, that the Officer Commanding Capitol Hill Police Station do ensure compliance with the orders herein and that the Respondents to bear cost of the this application.
3. The grounds are on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. There was an application dated 30th July 2019 seeking that a motor vehicle registration number KCA 505J Toyota Mark X be returned to the applicant and the same not be transferred, sold or dealt with pending the hearing and determination of the application and reference of the matter to Arbitration.
b. In her ruling delivered on the 8th November 2019, the learned magistrate issued an Order restraining the respondent or the buyer of the vehicle from transferring it from the applicant’s name to any other name before the matter is heard and concluded or otherwise directed by the court.
c. The order was issued in the presence of the counsel for the Defendant/Respondent’s counsel Ms Niwagaba who is obligated to bring to the knowledge of the Defendant/Respondent.
d. Despite of the Defendants/Respondents knowledge of the said order, they have willingly and maliciously caused to transfer the Motor Vehicle Registration Number KCA 505J Toyota Mark X from the name of the applicant to the name of third party namely Paul Mathenge Wanderi.
e. The Defendants/Respondents conduct undermines the authority and dignity of this Honorable court and as such, must be dealt with firmly to avoid bringing the court to disrepute.
4. In response to the application dated 24th July 2023, the 2nd Defendant/Respondent swore a replying affidavit and hereunder are the grounds of opposition;
a. The defendant financed the sale of the said Motor vehicle and upon breach of the agreement, he exercised his right of repossession and sold the car by way of an auction.
b. By the time the car was sold on auction, the ruling had not been issued and the Motor vehicle was sold on auction to one Samuel Gateru Kamau and Paul Mathenge Wanderi is unknown to the Defendants/Respondents.
c. The Defendants/Respondent have no knowledge how the Caveat was lifted at the NTSA as at 13th April, 2023 the Motor vehicle was still under caveat and transfer was not possible as evidenced by certificate of name and search.
5. Being aggrieved by the Ruling of the Learned Magistrate, the appellant proffered an appeal and set out the following as the grounds;
a. The Learned Magistrate erred in fact and law by failing to appreciate the circumstances leading to the issuance of the Orders of 8th November 2019 that gave rise to the application for contempt of court proceedings dated 24th July 2023.
b. The Learned Magistrate erred in fact and law by failing to appreciate the Orders of the court on 8th November 2019 and noted that the Motor Vehicle KCA 505J had not yet been transferred from the Appellant’s name and restrained the 1st Respondent from doing so.
c. The Learned Magistrate erred in fact and law by failing to take the recognizances of the fact that the Orders of 8th November, 2019 were directed to the 1st Respondent which was way before the 2nd Respondent had not been enjoined in the suit.
d. The Learned Magistrate erred in fact and law by failing to appreciate and interrogate the fact that at the time of the issuance of the Orders of 8th November 2019 the suit motor vehicle was in the names of both the Appellant and the 1st Respondent and any transfer could not have been initiated by either party.
e. The Learned Magistrate erred in fact and law by relying on an inconclusive letter by NTSA in absolving the 1st Respondent from the acts of contempt.
f. The Learned Magistrate erred in fact and law by failing to hold the 1st Respondent as a contemnor yet the Orders of 8th November 2019 were unequivocally directed to them.
Analysis and Determination:
6. I have with singleness of my mind, perused all the grounds of appeal and note that they overlap one another. Consequently, I collapse them into one issue for determination; Is the appellant in contempt of court orders or not.
7. I must remark from the outset that contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. Many are the decisions on contempt proceedings and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage.
8. Gatharia K. Mutikika Vs Baharini Farm Ltd {1985} KLR 227 where it was held; " The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... It must be higher than proof on a balance of probabilities, almost, but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. it is not safe to extend it to offence, which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge... Recourse ought not be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... Applying the test that the standard of proof should be consistent with the gravity of the alleged contempt...it is competent for the court where a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not."
9. Econet Wireless Kenya Ltd Vs Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) it was held thus; “Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.’
10. The evidentiary material by way of affidavits discloses that, as at the time the Trial Court issued restraint orders on 8th November, 2019, there was a caveat in place and that transfer had not been effected either to the Respondents or to any buyer. Intriguingly, the subject motor vehicle was transferred in total disregard of the Order of Court and there is need for the contemnor to explain and unlock the mysteries revolving this conduct. On that account alone, I am little persuaded to upset the findings of the trial court.
11. Having set the law on contempt as it ought to be and the consequent remarks, I make the following orders.
a. The appeal is dismissed.
b. That Paul Mathenge Wanderi to avail himself before trial court in compliance of the ruling of court dated 31st January, 2025.
c. Costs to the Respondent.
Delivered virtually this 9th September, 2026 in the presence of Ms Kariuki for the Appellant.
2. Before the lower court was Notice of Motion dated 24th July 2023 under sections 1A and 1B of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and other enabling provisions of the law, seeking substantively one prayer; that the Defendant/Respondents herein be cited for contempt of Court for breach of the Injunctive Order issued on 8th November, 2019 and be committed to prison for such a period of time not exceeding six months and /or they purge the contempt, that the Officer Commanding Capitol Hill Police Station do ensure compliance with the orders herein and that the Respondents to bear cost of the this application.
3. The grounds are on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. There was an application dated 30th July 2019 seeking that a motor vehicle registration number KCA 505J Toyota Mark X be returned to the applicant and the same not be transferred, sold or dealt with pending the hearing and determination of the application and reference of the matter to Arbitration.
b. In her ruling delivered on the 8th November 2019, the learned magistrate issued an Order restraining the respondent or the buyer of the vehicle from transferring it from the applicant’s name to any other name before the matter is heard and concluded or otherwise directed by the court.
c. The order was issued in the presence of the counsel for the Defendant/Respondent’s counsel Ms Niwagaba who is obligated to bring to the knowledge of the Defendant/Respondent.
d. Despite of the Defendants/Respondents knowledge of the said order, they have willingly and maliciously caused to transfer the Motor Vehicle Registration Number KCA 505J Toyota Mark X from the name of the applicant to the name of third party namely Paul Mathenge Wanderi.
e. The Defendants/Respondents conduct undermines the authority and dignity of this Honorable court and as such, must be dealt with firmly to avoid bringing the court to disrepute.
4. In response to the application dated 24th July 2023, the 2nd Defendant/Respondent swore a replying affidavit and hereunder are the grounds of opposition;
a. The defendant financed the sale of the said Motor vehicle and upon breach of the agreement, he exercised his right of repossession and sold the car by way of an auction.
b. By the time the car was sold on auction, the ruling had not been issued and the Motor vehicle was sold on auction to one Samuel Gateru Kamau and Paul Mathenge Wanderi is unknown to the Defendants/Respondents.
c. The Defendants/Respondent have no knowledge how the Caveat was lifted at the NTSA as at 13th April, 2023 the Motor vehicle was still under caveat and transfer was not possible as evidenced by certificate of name and search.
5. Being aggrieved by the Ruling of the Learned Magistrate, the appellant proffered an appeal and set out the following as the grounds;
a. The Learned Magistrate erred in fact and law by failing to appreciate the circumstances leading to the issuance of the Orders of 8th November 2019 that gave rise to the application for contempt of court proceedings dated 24th July 2023.
b. The Learned Magistrate erred in fact and law by failing to appreciate the Orders of the court on 8th November 2019 and noted that the Motor Vehicle KCA 505J had not yet been transferred from the Appellant’s name and restrained the 1st Respondent from doing so.
c. The Learned Magistrate erred in fact and law by failing to take the recognizances of the fact that the Orders of 8th November, 2019 were directed to the 1st Respondent which was way before the 2nd Respondent had not been enjoined in the suit.
d. The Learned Magistrate erred in fact and law by failing to appreciate and interrogate the fact that at the time of the issuance of the Orders of 8th November 2019 the suit motor vehicle was in the names of both the Appellant and the 1st Respondent and any transfer could not have been initiated by either party.
e. The Learned Magistrate erred in fact and law by relying on an inconclusive letter by NTSA in absolving the 1st Respondent from the acts of contempt.
f. The Learned Magistrate erred in fact and law by failing to hold the 1st Respondent as a contemnor yet the Orders of 8th November 2019 were unequivocally directed to them.
Analysis and Determination:
6. I have with singleness of my mind, perused all the grounds of appeal and note that they overlap one another. Consequently, I collapse them into one issue for determination; Is the appellant in contempt of court orders or not.
7. I must remark from the outset that contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. Many are the decisions on contempt proceedings and whereas I may not be able to exhaustively sample them in this Judgement, I find the following passages apposite to act as my anchorage.
8. Gatharia K. Mutikika Vs Baharini Farm Ltd {1985} KLR 227 where it was held; " The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... It must be higher than proof on a balance of probabilities, almost, but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. it is not safe to extend it to offence, which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge... Recourse ought not be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... Applying the test that the standard of proof should be consistent with the gravity of the alleged contempt...it is competent for the court where a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not."
9. Econet Wireless Kenya Ltd Vs Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) it was held thus; “Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.’
10. The evidentiary material by way of affidavits discloses that, as at the time the Trial Court issued restraint orders on 8th November, 2019, there was a caveat in place and that transfer had not been effected either to the Respondents or to any buyer. Intriguingly, the subject motor vehicle was transferred in total disregard of the Order of Court and there is need for the contemnor to explain and unlock the mysteries revolving this conduct. On that account alone, I am little persuaded to upset the findings of the trial court.
11. Having set the law on contempt as it ought to be and the consequent remarks, I make the following orders.
a. The appeal is dismissed.
b. That Paul Mathenge Wanderi to avail himself before trial court in compliance of the ruling of court dated 31st January, 2025.
c. Costs to the Respondent.
Delivered virtually this 9th September, 2026 in the presence of Ms Kariuki for the Appellant.