REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E686 OF 2024
IN THE MATTER OF: ARTICLES 2,3,10,19,20,21,23,27,27,28,43,47,48,50,53,258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BASIC EDUCATION ACT NO, NO 14 OF 2013
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BASIC EDUCATION REGULATIONS, 2015
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE FAIR
ADMINISTRATIVE ACTIONS ACT, NO 4 OF 2015
AND
IN THE MATTER OF: THE UNITED NATIONS CONVENTION ON THE RIGHTS
OF A CHILD
AND
IN THE MATTER OF: THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
AND
IN THE MATTER OF: IRRATIONALITY AND UNREASONABLENESS BETWEEN
THE BOARD OF MANAGEMENT,
GATOTO COMMUNITY PRIMARY SCHOOL …………………………………. 1 ST PETITIONER
THE BOARD OF DIRECTORS,
GATOTO PRIMARY SCHOOL…………….........................………………….2 ND PETITIONER
FELIX MWANGANGI MAUNDU………………………..………………………… 3 RD PETITIONER
VERSUS
NICHOLAS MEMUSI ………………………………………………………………….1 ST RESPONDENT
PETER WABWOBA MAKALI …………………………………..…………………2 ND RESPONDENT
MARY KIMEU……………………………………………………………………………3 RD RESPONDENT
DAVID NDIRANGU……………………………………………………………………4 TH RESPONDENT
ROBINSON KOMBO OGECHI …………………………………………………… 5 TH RESPONDENT
COUNTY EDUCATION BOARD, NAIROBI COUNTY ……………………6 TH RESPONDENT
REGIONAL DIRECTOR FOR EDUCATION ………………………………….7 TH RESPONDENT
RULING
(On the Petitioners’ Notice of Motions dated 5 th August 2025 and 11 th September 2025)
1. The two Notices of Motion before this Court arise from, and are inextricably anchored upon, the Judgment and Decree of this Court delivered on 12 th June 2025, by which the conversion of Gatoto Community Primary School into a public institution was declared unlawful, unconstitutional, and null. The Court consequently quashed the impugned registration and ordered the restoration of the school to the ownership and management of the 1 st Petitioner as a private APBET institution, while restraining the Respondents from any interference therewith.
2. Notwithstanding the clarity, finality, and binding force of the said Judgment, the Petitioners contend that its implementation has been persistently obstructed, both by unidentified third parties and by State actors, thereby frustrating the enjoyment of the fruits of their successful litigation and, more gravely, undermining the authority and dignity of this Court.
3. The first application, dated 5 th August 2025, is principally facilitative and coercive in nature, seeking to secure compliance with the Court’s Judgment. In particular, the Petitioners pray for police assistance from the OCS Kwa Reuben Police Station to enforce the decree; restraining orders against the Respondents from interfering with the enforcement process, with attendant penal consequences in the event of disobedience; and an order requiring the said OCS to file a report confirming compliance. The application is premised on the assertion that, despite due service of the decree and prior notification of their intention to resume control, the Petitioners were, on 1 st August 2025, violently denied access to the school premises by hostile and armed individuals, thereby jeopardizing public order, student welfare, and the orderly reopening of the school.
4. The evidentiary material placed before the Court, including the supporting and further affidavits sworn by Gideon Ndambuki, discloses a consistent narrative of sustained non-compliance and escalating obstruction. It is deponed that the Petitioners undertook various lawful and procedural steps to actualize the Judgment, including notifying the Respondents, engaging law enforcement agencies, and attempting a peaceful resumption of management. These efforts, it is alleged, were first met with violent resistance from unknown persons and thereafter compounded by inaction, and in some instances complicity, on the part of law enforcement authorities who failed to provide the court-ordered security. The Petitioners further aver that their efforts were frustrated by bureaucratic inertia, unproductive engagements with police command structures, and the failure by the relevant officers to comply with express court directives requiring facilitation of enforcement and confirmation of compliance.
5. More gravely, the affidavits level allegations of deliberate and contumacious disobedience of court orders by public officers, notably the OCS Kwa Reuben Police Station and the Deputy County Commissioner. Particular emphasis is placed on the events of 2 nd January 2026, when police officers are said to have forcefully ejected the Petitioners and members of the community from the school premises, notwithstanding their awareness of subsisting court orders, and proceeded to effect arrests of individuals associated with the Petitioners. These arrests, it is contended, culminated in criminal proceedings that were actuated by malice and designed to intimidate and impede the enforcement of the Court’s decree.
6. The Petitioners further impugn the conduct of the Respondents as being calculated to defeat the substance of the Judgment, including allegations of fragmentation and re-registration of the school into multiple entities and the continued assertion, contrary to the Court’s determination, that the institution remains a public school. It is also contended that the 5 th Respondent has adopted inconsistent and misleading positions before different fora. According to the Petitioners, these actions have engendered confusion, disrupted educational continuity, and gravely prejudiced the interests of students, parents, and the wider community.
7. The second application, dated 11 th September 2025, escalates the matter into the realm of contempt proceedings. By that application, the Petitioners seek, inter alia, to have the OCS Kwa Reuben Police Station, Benson Mwai, and the Deputy County Commissioner, Eric wa Mulevu, summoned to show cause why they should not be cited for contempt of court for disobeying the orders issued on 14 th August 2025, which had expressly directed the provision of police assistance to facilitate enforcement of the Judgment. The Petitioners further seek orders compelling demonstration of compliance, and in default, the issuance of warrants of arrest and committal to civil jail.
8. Additionally, the Petitioners seek the joinder of the Inspector General of Police as an Interested Party, together with consequential orders directing that office to ensure enforcement of the Judgment, prevent disruption of school operations, and file a compliance report before the Court.
9. The gravamen of the second application is that, despite clear, unambiguous, and binding orders of this Court, the said public officers have willfully and deliberately failed, refused, and/or neglected to comply, including, it is alleged, openly declining to implement the Court’s directives during meetings of the Embakasi Sub-County Security Council. As a consequence, the Petitioners assert that they have been unable to assume possession and management of the school, thereby occasioning disruption to learning and hardship to the student body.
10. In their submissions, the Petitioners maintain that both applications are firmly grounded in the Court’s inherent and statutory jurisdiction to enforce its decrees and to punish for contempt. With respect to the first application, they invoke Section 38 of the Civil Procedure Act to contend that the Court is vested with wide discretion to order execution in a manner commensurate with the nature of the relief granted, including the provision of police assistance where necessary. They argue that, in the absence of any order of stay, they are entitled to the full benefit of the Judgment, and that the orders sought are purely facilitative of its enforcement.
11. In respect of the second application, the Petitioners submit that the legal threshold for contempt is well settled, requiring proof of the existence of a clear order, knowledge thereof, breach, and deliberate disobedience. They contend that all these elements have been satisfied, and that the continued non-compliance by the named officers constitutes a direct affront to the authority of the Court and the rule of law. They further argue that the joinder of the Inspector General of Police is both necessary and appropriate to ensure effective command, coordination, and enforcement of the Court’s orders.
12. Taken together, the applications invite this Court to vindicate its authority, uphold the rule of law, and ensure that its Judgment is not rendered illusory by recalcitrance or administrative inaction. The Petitioners accordingly urge the Court to grant the enforcement and contempt orders sought, so as to secure compliance with its decree and to safeguard the interests of the students and the broader community.
13. The 5 th Respondent, Robinson Kombo Ogechi, opposes the Petitioners’ Notice of Motion dated 5 th August 2025 in limine and in its entirety. He contends that the issues raised therein are res judicata in effect, the Court having already pronounced itself through the decree dated 18 th July 2025, which, inter alia, restrained the 1 st Respondent (the OCS) from interfering with the management and operations of the subject school. In his view, the orders now sought are incapable of enforcement in their present form and amount to an impermissible invitation to the Court to revisit and reissue orders over which it is functus officio .
14. The 5 th Respondent further avers that he has lodged a Notice of Appeal against the said Judgment and has also filed an application for stay of execution in respect of the decree dated 7 th August 2025. He maintains that the said application for stay ought to be heard and determined prior to any consideration of the present application, particularly given what he characterizes as the arguable and meritorious nature of the intended appeal. On that basis, he urges the Court to decline the reliefs sought.
15. The 1 st , 2 nd , 3 rd , 4 th and 6 th Respondents, on their part, adopt a qualified position. While they do not oppose the application in so far as it seeks facilitative orders to aid enforcement of the Judgment, they firmly resist the prayer seeking coercive orders in the nature of contempt, contending that the same is legally untenable.
16. Their opposition is grounded on the argument that the Petitioners have failed to meet both the substantive and procedural threshold requisite for the grant of contempt orders. They submit that the allegations of interference with the Court’s decree are directed at “unknown persons” who have neither been identified nor impleaded in the proceedings, and that no evidential nexus has been established linking the Respondents to any acts of disobedience.
17. The Respondents further contend that no penal notice was served upon them, and that in the absence of proper service of the order together with the requisite penal notice, contempt proceedings are premature and incompetent. They emphasize that contempt of court proceedings are quasi-criminal in nature, with potential consequences including deprivation of liberty, and must therefore be approached with circumspection and subjected to a heightened standard of proof.
18. In support of these propositions, the Respondents rely on Republic v Mohammed & another Petition 39 of 2018 (2019) KESC 47 (KLR), wherein the Court underscored that contempt proceedings serve to vindicate judicial authority and uphold the rule of law. They further invoke Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 , for the principle that the standard of proof in contempt proceedings is higher than on a balance of probabilities, though not strictly beyond reasonable doubt.
19. The Respondents submit that the essential elements of contempt namely, the existence of a clear and unambiguous order, knowledge thereof, breach of the order, and willful and deliberate disobedience have not been established. In this regard, reliance is placed on Justus Kariuki Mate & Another v Martin Nyaga Wambora & another C.A No. 24 of 2014 , where the Court emphasized the necessity of proof to a high degree of certainty, given the penal consequences attendant to contempt.
20. Further reliance is placed on Samuel M. N. Maweu & others v National Land Commission (2020) eKLR, which sets out the four-part test for contempt, and Koilel & 2 others v Koilel & another (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR), which reiterates the requirement for proof of the order, knowledge, and non-compliance.
21. On the question of service, the Respondents cite Ochino & another v Okhombo & others (1989) KLR, for the proposition that, as a general rule, a court order cannot be enforced through committal for contempt absent personal service upon the alleged contemnor. They argue that such service must include a penal notice clearly stipulating the consequences of non-compliance.
22. Additionally, the Respondents draw the Court’s attention to Rule 81.4 of the English Civil Procedure (Amendment No. 3) Rules 2020, which prescribes the procedural requirements for contempt applications, including the obligation to particularize the alleged breach, demonstrate personal service, and exhibit the penal notice. They contend that these safeguards have not been satisfied in the present case.
23. The Respondents argue that the Petitioners have failed to discharge the burden of proof required in contempt proceedings, having neither identified specific acts attributable to the Respondents nor demonstrated willful disobedience of a duly served court order. They accordingly urge the Court to decline the prayer for contempt, while exercising due caution in light of the serious and penal consequences attendant to such proceedings.
24. Benson Mbai, of Force No. 237314, who identifies himself as the Officer Commanding Station (OCS) Kwa Reuben Police Station, by way of a Supporting Affidavit, avers that, pursuant to being served with the decree by the Honourable Attorney General, he is duly seized of the facts of this matter and therefore competent to depose thereto. He clarifies, at the outset, that he is not the 1 st Respondent in these proceedings, the said party being one Peter Wabwaba Makali, and expresses uncertainty as to whether the latter was duly served with the court order in question.
25. He further states that upon receipt of the court order at his station, he promptly forwarded the same to his superiors in accordance with the established command structure and procedural protocols governing the execution of such orders within the National Police Service. He avers that he has since been awaiting operational directions from his superiors, who have indicated that a security committee would be convened to deliberate on the appropriate modalities for the implementation of the said order.
26. The OCS additionally raises concerns as to the practicability and safety of enforcing the order, noting that Gatoto Primary School is situated within a densely populated informal settlement. In this regard, he depones that he has brought to the attention of his superiors the potential risks attendant to any forceful enforcement, particularly the likelihood of endangering members of the public, including school-going children.
27. The OCS recommends that the court order be amended and expressly directed to him for purposes of execution, and proposes that a meeting be convened by the relevant superior authorities, bringing together all stakeholders, with a view to exploring an amicable resolution to the dispute. He reiterates his request that the order be resubmitted through the appropriate security command structures to facilitate coordinated and orderly implementation.
Analysis and Determination
28. Having carefully considered the two Notices of Motion before this Court, together with the pleadings, supporting and replying affidavits, affidavits of service, and the detailed written and oral submissions of all parties, the Court is called upon to determine issues arising from the enforcement of its Judgment delivered on 12 th June 2025 and the consequential orders issued thereafter. In doing so, the Court has evaluated the evidentiary record, the procedural posture of the parties, and the applicable principles of law governing enforcement and contempt proceedings. From this analysis, the following issues emerge for determination:
i. Whether the OCS Kwa Reuben Police Station, the Deputy County Commissioner, or any other named officers are in contempt of the Court’s orders issued on 14 th August 2025.
ii. Whether the Petitioners are entitled to facilitative reliefs, including police assistance, to enable implementation of the Judgment of 12 th June 2025.
iii. Whether the Inspector General of Police ought to be enjoined as an Interested Party for purposes of enforcement and coordination.
29. At the very core of this dispute is the enforcement of a Judgment of this Court which is final, binding, and unequivocal in its terms, having expressly restored Gatoto Community Primary School to the management and control of the 1 st Petitioner as a private APBET institution, and further restrained the Respondents from any form of interference therewith. Notwithstanding the clarity, certainty, and mandatory character of that decree, the Petitioners contend that its implementation has been met with persistent obstruction and resistance, thereby necessitating the invocation of this Court’s coercive and facilitative jurisdiction to secure compliance and vindicate the authority of its orders.
30. The Court first addresses whether the procedural and substantive threshold for contempt has been met. The law is settled that contempt jurisdiction is quasi-criminal in nature, and must therefore be exercised with caution and strict adherence to due process. It requires proof of: (i) a clear and unambiguous order (ii) knowledge of the order (iii) breach and (iv) wilful disobedience.
31. These principles are firmly established in Koilel & 2 Others v Koilel & Another (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR), and Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227.
32. As was held in Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, contempt proceedings are quasi-criminal in nature, and the standard of proof is higher than on a balance of probabilities, though not as high as beyond reasonable doubt. The applicant must establish the existence of a clear order, knowledge thereof, non-compliance, and wilful disobedience.
33. The standard of proof in contempt proceedings, while not attaining the threshold of proof beyond reasonable doubt, is nevertheless higher than that applicable in ordinary civil claims on a balance of probabilities. This is so because contempt proceedings are quasi-criminal in nature, often carrying penal consequences including deprivation of liberty, and therefore demand strict scrutiny. As was stated in Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another C.A No. 24 of 2014 , “it is important to restate that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities but not as high as beyond reasonable doubt.” Similarly, in Republic v Mohammed & Another, Petition 39 of 2018 (2019) KESC 47 (KLR), the Supreme Court underscored that contempt proceedings require a standard of proof higher than in ordinary civil cases, and that allegations must be proved with a degree of precision and strictness commensurate with the gravity of the consequences attendant upon a finding of contempt.
34. The Court has carefully considered the affidavit of service sworn by Berinea Lumbasi, which confirms service of the decree upon the respective Respondents and their counsel. It is a settled principle of Kenyan jurisprudence that personal service of a court order, duly accompanied by a penal notice, ordinarily constitutes a foundational requirement in contempt proceedings, as stated in Ochino & Another v Okhombo & Others [1989] KLR . This requirement is not a mere procedural technicality, but a substantive safeguard intended to ensure that a party is placed beyond equivocation as to the existence of the order and the serious legal consequences that may follow any disobedience thereof.
35. The jurisprudential foundation governing contempt proceedings in Kenya has long been anchored on this strict requirement of personal service, properly endorsed with a penal notice, before committal proceedings may properly issue. This position, firmly articulated in Ochino & Another v Okhombo & Others [1989] KLR and subsequently reiterated in decisions such as Highlands Plant Ltd v Alice Wairimu Mwangi [2005] eKLR, underscores the mandatory nature of procedural compliance within contempt jurisdiction. The rationale is clear. An alleged contemnor must be unequivocally made aware not only of the existence of the court order but also of the penal consequences attendant upon its breach, the penal notice serving as an express and formal warning that non-compliance may attract sanctions including imprisonment or fine.
36. Over time, however, Kenyan jurisprudence has evolved beyond a rigid insistence on formal proof of personal service. The courts have progressively adopted a more substantive and purposive approach, centred on actual knowledge of the order rather than mere technical compliance with service requirements. In this regard, it is now well settled that a party who is shown to have actual knowledge of a court order cannot evade liability for contempt on the basis of absence or defect in personal service. This modern approach was expressly affirmed by the Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, where the Court held that knowledge of a court order supersedes strict compliance with the requirement of personal service.
37. The current legal position therefore reflects a principled synthesis. While personal service accompanied by a penal notice remains the orthodox and preferred procedural safeguard, the Court is nonetheless entitled, in appropriate circumstances, to dispense with strict proof of service where it is satisfied that the alleged contemnor had actual or constructive knowledge of the order. This approach ensures that contempt jurisdiction is not reduced to an instrument of procedural evasion, while at the same time preserving the fairness and safeguards inherent in proceedings that carry penal consequences.
38. That said, the law has equally recognized that knowledge of a court order may properly be inferred from a party’s participation in the proceedings or direct and intimate involvement in the litigation, even absent formal personal service. This position has been affirmed in Basil Criticos v Attorney General [2012] eKLR and Henry Musemate Murwa v Francis Owino, Principal Secretary [2021] eKLR , where the courts recognized that knowledge of a court order may be inferred from participation in proceedings or surrounding circumstances, and that liability for contempt turns on proof of knowledge and wilful disobedience rather than mere technical proof of personal service in all circumstances.
39. Applying these principles to the present matter, the Respondents are senior public officers who were directly engaged in, and intimately connected with, the proceedings culminating in the issuance of the orders of this Court. In those circumstances, the Court is satisfied that they possessed, at the very least, constructive knowledge, and in all likelihood actual knowledge, of the existence, tenor, and binding effect of the Court’s orders.
40. The gravamen of the Petitioners’ case is that, notwithstanding the subsistence and alleged knowledge of the Judgment, the Respondents engaged in a series of obstructive acts aimed at frustrating its implementation, including denial of access to Gatoto Community Primary School, forcible removal of the Petitioners from the premises, and arrests of persons associated with enforcement efforts, particularly in relation to the events of 2 nd January 2026.
41. While these allegations, if proved, would be of a serious and troubling nature, this Court is enjoined to apply the strict and exacting threshold governing contempt proceedings, which demands clear, specific, and unequivocal attribution of culpability to identifiable contemnors. It is a well-settled principle that contempt jurisdiction cannot be sustained on the basis of generalised, speculative, or unparticularised allegations, however grave the narrative may appear.
42. In the present matter, a substantial portion of the alleged acts is attributed either to unknown or unidentified individuals, or is explained by the concerned officers as arising from operational exigencies, including absence of express instructions and prevailing security considerations on the ground.
43. The Court further takes cognisance of the explanation tendered by the Officer Commanding Station, Kwa Reuben Police Station, who avers that he did not decline to comply with the Court’s orders, but instead awaited appropriate administrative direction through the established chain of command, while also raising legitimate concerns regarding safety and public order within a densely populated informal settlement.
44. In light of these competing accounts, and guided by the stringent evidentiary standard applicable in contempt proceedings, the Court is not satisfied that the Petitioners have discharged the burden of demonstrating, with requisite precision and clarity, which specific act of disobedience is attributable to which specific officer, nor has wilful and deliberate defiance of the Court’s orders been established to the required legal threshold.
45. The Court further observes that contempt proceedings require strict compliance with procedural safeguards, including service of the order together with a penal notice. The absence of clear proof of such compliance weakens the foundation of the contempt application, given the penal consequences that may follow.
46. In view of the foregoing, and guided by the authorities cited, this Court finds that the threshold for contempt has not been met at this stage. While there is evidence of friction and alleged non-compliance in the enforcement process, the Court is not satisfied that any of the named Respondents has been shown to have willfully and deliberately disobeyed the orders of this Court in the manner required by law.
47. Accordingly, the Court is not persuaded that a finding of contempt can properly issue against any party at this stage.
48. Notwithstanding the foregoing finding, the Court reiterates that its Judgment of 12 th June 2025 remains valid, binding, and fully enforceable. Section 38 of the Civil Procedure Act vests this Court with wide powers to ensure meaningful execution of its decrees, including the issuance of facilitative orders necessary to give effect to its judgment.
49. It is now well settled that a successful litigant is entitled not merely to a declaratory judgment, but to the effective realization of the fruits of that judgment, and the Court is empowered, in appropriate circumstances, to issue facilitative orders to ensure compliance and enforcement of its decrees, including, where necessary, directions for police assistance. This position has been affirmed in Hussein v Washivambi [2023] KEELC 22600 and William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & 2 Others [2017] KEELC 281, where the courts emphasized that execution mechanisms may properly be invoked to ensure that court orders are not rendered illusory.
50. The Court is satisfied that denial of access to the subject school, if allowed to persist, would not only defeat the rights of the Petitioners but would also undermine the authority and dignity of the judiciary.
51. On the question of joinder, the Court is not persuaded that the Inspector General of Police ought to be enjoined at this stage. It is trite that joinder is not an automatic procedural indulgence, but one that is only warranted where the presence of the proposed party is necessary for the effectual and complete adjudication of the issues in controversy, as aptly stated in Republic v County Government of Kitui Ex Parte Fairplan Systems Limited [2022] eKLR.
52. In the present matter, the Court is not satisfied that the alleged non-compliance discloses any systemic institutional breakdown or failure of command necessitating escalation to the highest office of the National Police Service. Rather, the material before Court points to issues capable of resolution at the operational level of the officers already properly before this Court. In those circumstances, and bearing in mind the principles of proportionality, procedural economy, and judicial restraint; the Court is of the considered view that effective compliance may be secured through proper service, supervision, and monitoring of the existing Respondents, without the need for the extraordinary step of enjoining the Inspector General at this stage.
53. The Court has also taken judicial notice of the decision in Memusi - Officer Commanding Station Kwa Reuben Police Station & 5 Others v Board of Management – Gatoto Community Primary School & 2 Others [2026] KECA 411 (KLR), wherein the Court of Appeal granted leave to appeal out of time. While this underscores the existence of an arguable appeal, it does not operate as a stay nor does it suspend the binding effect of the subsisting orders of this Court.
54. For the foregoing reasons, this Court makes the following findings and consequen
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IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E686 OF 2024
IN THE MATTER OF: ARTICLES 2,3,10,19,20,21,23,27,27,28,43,47,48,50,53,258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BASIC EDUCATION ACT NO, NO 14 OF 2013
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BASIC EDUCATION REGULATIONS, 2015
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE FAIR
ADMINISTRATIVE ACTIONS ACT, NO 4 OF 2015
AND
IN THE MATTER OF: THE UNITED NATIONS CONVENTION ON THE RIGHTS
OF A CHILD
AND
IN THE MATTER OF: THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
AND
IN THE MATTER OF: IRRATIONALITY AND UNREASONABLENESS BETWEEN
THE BOARD OF MANAGEMENT,
GATOTO COMMUNITY PRIMARY SCHOOL …………………………………. 1 ST PETITIONER
THE BOARD OF DIRECTORS,
GATOTO PRIMARY SCHOOL…………….........................………………….2 ND PETITIONER
FELIX MWANGANGI MAUNDU………………………..………………………… 3 RD PETITIONER
VERSUS
NICHOLAS MEMUSI ………………………………………………………………….1 ST RESPONDENT
PETER WABWOBA MAKALI …………………………………..…………………2 ND RESPONDENT
MARY KIMEU……………………………………………………………………………3 RD RESPONDENT
DAVID NDIRANGU……………………………………………………………………4 TH RESPONDENT
ROBINSON KOMBO OGECHI …………………………………………………… 5 TH RESPONDENT
COUNTY EDUCATION BOARD, NAIROBI COUNTY ……………………6 TH RESPONDENT
REGIONAL DIRECTOR FOR EDUCATION ………………………………….7 TH RESPONDENT
RULING
(On the Petitioners’ Notice of Motions dated 5 th August 2025 and 11 th September 2025)
1. The two Notices of Motion before this Court arise from, and are inextricably anchored upon, the Judgment and Decree of this Court delivered on 12 th June 2025, by which the conversion of Gatoto Community Primary School into a public institution was declared unlawful, unconstitutional, and null. The Court consequently quashed the impugned registration and ordered the restoration of the school to the ownership and management of the 1 st Petitioner as a private APBET institution, while restraining the Respondents from any interference therewith.
2. Notwithstanding the clarity, finality, and binding force of the said Judgment, the Petitioners contend that its implementation has been persistently obstructed, both by unidentified third parties and by State actors, thereby frustrating the enjoyment of the fruits of their successful litigation and, more gravely, undermining the authority and dignity of this Court.
3. The first application, dated 5 th August 2025, is principally facilitative and coercive in nature, seeking to secure compliance with the Court’s Judgment. In particular, the Petitioners pray for police assistance from the OCS Kwa Reuben Police Station to enforce the decree; restraining orders against the Respondents from interfering with the enforcement process, with attendant penal consequences in the event of disobedience; and an order requiring the said OCS to file a report confirming compliance. The application is premised on the assertion that, despite due service of the decree and prior notification of their intention to resume control, the Petitioners were, on 1 st August 2025, violently denied access to the school premises by hostile and armed individuals, thereby jeopardizing public order, student welfare, and the orderly reopening of the school.
4. The evidentiary material placed before the Court, including the supporting and further affidavits sworn by Gideon Ndambuki, discloses a consistent narrative of sustained non-compliance and escalating obstruction. It is deponed that the Petitioners undertook various lawful and procedural steps to actualize the Judgment, including notifying the Respondents, engaging law enforcement agencies, and attempting a peaceful resumption of management. These efforts, it is alleged, were first met with violent resistance from unknown persons and thereafter compounded by inaction, and in some instances complicity, on the part of law enforcement authorities who failed to provide the court-ordered security. The Petitioners further aver that their efforts were frustrated by bureaucratic inertia, unproductive engagements with police command structures, and the failure by the relevant officers to comply with express court directives requiring facilitation of enforcement and confirmation of compliance.
5. More gravely, the affidavits level allegations of deliberate and contumacious disobedience of court orders by public officers, notably the OCS Kwa Reuben Police Station and the Deputy County Commissioner. Particular emphasis is placed on the events of 2 nd January 2026, when police officers are said to have forcefully ejected the Petitioners and members of the community from the school premises, notwithstanding their awareness of subsisting court orders, and proceeded to effect arrests of individuals associated with the Petitioners. These arrests, it is contended, culminated in criminal proceedings that were actuated by malice and designed to intimidate and impede the enforcement of the Court’s decree.
6. The Petitioners further impugn the conduct of the Respondents as being calculated to defeat the substance of the Judgment, including allegations of fragmentation and re-registration of the school into multiple entities and the continued assertion, contrary to the Court’s determination, that the institution remains a public school. It is also contended that the 5 th Respondent has adopted inconsistent and misleading positions before different fora. According to the Petitioners, these actions have engendered confusion, disrupted educational continuity, and gravely prejudiced the interests of students, parents, and the wider community.
7. The second application, dated 11 th September 2025, escalates the matter into the realm of contempt proceedings. By that application, the Petitioners seek, inter alia, to have the OCS Kwa Reuben Police Station, Benson Mwai, and the Deputy County Commissioner, Eric wa Mulevu, summoned to show cause why they should not be cited for contempt of court for disobeying the orders issued on 14 th August 2025, which had expressly directed the provision of police assistance to facilitate enforcement of the Judgment. The Petitioners further seek orders compelling demonstration of compliance, and in default, the issuance of warrants of arrest and committal to civil jail.
8. Additionally, the Petitioners seek the joinder of the Inspector General of Police as an Interested Party, together with consequential orders directing that office to ensure enforcement of the Judgment, prevent disruption of school operations, and file a compliance report before the Court.
9. The gravamen of the second application is that, despite clear, unambiguous, and binding orders of this Court, the said public officers have willfully and deliberately failed, refused, and/or neglected to comply, including, it is alleged, openly declining to implement the Court’s directives during meetings of the Embakasi Sub-County Security Council. As a consequence, the Petitioners assert that they have been unable to assume possession and management of the school, thereby occasioning disruption to learning and hardship to the student body.
10. In their submissions, the Petitioners maintain that both applications are firmly grounded in the Court’s inherent and statutory jurisdiction to enforce its decrees and to punish for contempt. With respect to the first application, they invoke Section 38 of the Civil Procedure Act to contend that the Court is vested with wide discretion to order execution in a manner commensurate with the nature of the relief granted, including the provision of police assistance where necessary. They argue that, in the absence of any order of stay, they are entitled to the full benefit of the Judgment, and that the orders sought are purely facilitative of its enforcement.
11. In respect of the second application, the Petitioners submit that the legal threshold for contempt is well settled, requiring proof of the existence of a clear order, knowledge thereof, breach, and deliberate disobedience. They contend that all these elements have been satisfied, and that the continued non-compliance by the named officers constitutes a direct affront to the authority of the Court and the rule of law. They further argue that the joinder of the Inspector General of Police is both necessary and appropriate to ensure effective command, coordination, and enforcement of the Court’s orders.
12. Taken together, the applications invite this Court to vindicate its authority, uphold the rule of law, and ensure that its Judgment is not rendered illusory by recalcitrance or administrative inaction. The Petitioners accordingly urge the Court to grant the enforcement and contempt orders sought, so as to secure compliance with its decree and to safeguard the interests of the students and the broader community.
13. The 5 th Respondent, Robinson Kombo Ogechi, opposes the Petitioners’ Notice of Motion dated 5 th August 2025 in limine and in its entirety. He contends that the issues raised therein are res judicata in effect, the Court having already pronounced itself through the decree dated 18 th July 2025, which, inter alia, restrained the 1 st Respondent (the OCS) from interfering with the management and operations of the subject school. In his view, the orders now sought are incapable of enforcement in their present form and amount to an impermissible invitation to the Court to revisit and reissue orders over which it is functus officio .
14. The 5 th Respondent further avers that he has lodged a Notice of Appeal against the said Judgment and has also filed an application for stay of execution in respect of the decree dated 7 th August 2025. He maintains that the said application for stay ought to be heard and determined prior to any consideration of the present application, particularly given what he characterizes as the arguable and meritorious nature of the intended appeal. On that basis, he urges the Court to decline the reliefs sought.
15. The 1 st , 2 nd , 3 rd , 4 th and 6 th Respondents, on their part, adopt a qualified position. While they do not oppose the application in so far as it seeks facilitative orders to aid enforcement of the Judgment, they firmly resist the prayer seeking coercive orders in the nature of contempt, contending that the same is legally untenable.
16. Their opposition is grounded on the argument that the Petitioners have failed to meet both the substantive and procedural threshold requisite for the grant of contempt orders. They submit that the allegations of interference with the Court’s decree are directed at “unknown persons” who have neither been identified nor impleaded in the proceedings, and that no evidential nexus has been established linking the Respondents to any acts of disobedience.
17. The Respondents further contend that no penal notice was served upon them, and that in the absence of proper service of the order together with the requisite penal notice, contempt proceedings are premature and incompetent. They emphasize that contempt of court proceedings are quasi-criminal in nature, with potential consequences including deprivation of liberty, and must therefore be approached with circumspection and subjected to a heightened standard of proof.
18. In support of these propositions, the Respondents rely on Republic v Mohammed & another Petition 39 of 2018 (2019) KESC 47 (KLR), wherein the Court underscored that contempt proceedings serve to vindicate judicial authority and uphold the rule of law. They further invoke Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 , for the principle that the standard of proof in contempt proceedings is higher than on a balance of probabilities, though not strictly beyond reasonable doubt.
19. The Respondents submit that the essential elements of contempt namely, the existence of a clear and unambiguous order, knowledge thereof, breach of the order, and willful and deliberate disobedience have not been established. In this regard, reliance is placed on Justus Kariuki Mate & Another v Martin Nyaga Wambora & another C.A No. 24 of 2014 , where the Court emphasized the necessity of proof to a high degree of certainty, given the penal consequences attendant to contempt.
20. Further reliance is placed on Samuel M. N. Maweu & others v National Land Commission (2020) eKLR, which sets out the four-part test for contempt, and Koilel & 2 others v Koilel & another (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR), which reiterates the requirement for proof of the order, knowledge, and non-compliance.
21. On the question of service, the Respondents cite Ochino & another v Okhombo & others (1989) KLR, for the proposition that, as a general rule, a court order cannot be enforced through committal for contempt absent personal service upon the alleged contemnor. They argue that such service must include a penal notice clearly stipulating the consequences of non-compliance.
22. Additionally, the Respondents draw the Court’s attention to Rule 81.4 of the English Civil Procedure (Amendment No. 3) Rules 2020, which prescribes the procedural requirements for contempt applications, including the obligation to particularize the alleged breach, demonstrate personal service, and exhibit the penal notice. They contend that these safeguards have not been satisfied in the present case.
23. The Respondents argue that the Petitioners have failed to discharge the burden of proof required in contempt proceedings, having neither identified specific acts attributable to the Respondents nor demonstrated willful disobedience of a duly served court order. They accordingly urge the Court to decline the prayer for contempt, while exercising due caution in light of the serious and penal consequences attendant to such proceedings.
24. Benson Mbai, of Force No. 237314, who identifies himself as the Officer Commanding Station (OCS) Kwa Reuben Police Station, by way of a Supporting Affidavit, avers that, pursuant to being served with the decree by the Honourable Attorney General, he is duly seized of the facts of this matter and therefore competent to depose thereto. He clarifies, at the outset, that he is not the 1 st Respondent in these proceedings, the said party being one Peter Wabwaba Makali, and expresses uncertainty as to whether the latter was duly served with the court order in question.
25. He further states that upon receipt of the court order at his station, he promptly forwarded the same to his superiors in accordance with the established command structure and procedural protocols governing the execution of such orders within the National Police Service. He avers that he has since been awaiting operational directions from his superiors, who have indicated that a security committee would be convened to deliberate on the appropriate modalities for the implementation of the said order.
26. The OCS additionally raises concerns as to the practicability and safety of enforcing the order, noting that Gatoto Primary School is situated within a densely populated informal settlement. In this regard, he depones that he has brought to the attention of his superiors the potential risks attendant to any forceful enforcement, particularly the likelihood of endangering members of the public, including school-going children.
27. The OCS recommends that the court order be amended and expressly directed to him for purposes of execution, and proposes that a meeting be convened by the relevant superior authorities, bringing together all stakeholders, with a view to exploring an amicable resolution to the dispute. He reiterates his request that the order be resubmitted through the appropriate security command structures to facilitate coordinated and orderly implementation.
Analysis and Determination
28. Having carefully considered the two Notices of Motion before this Court, together with the pleadings, supporting and replying affidavits, affidavits of service, and the detailed written and oral submissions of all parties, the Court is called upon to determine issues arising from the enforcement of its Judgment delivered on 12 th June 2025 and the consequential orders issued thereafter. In doing so, the Court has evaluated the evidentiary record, the procedural posture of the parties, and the applicable principles of law governing enforcement and contempt proceedings. From this analysis, the following issues emerge for determination:
i. Whether the OCS Kwa Reuben Police Station, the Deputy County Commissioner, or any other named officers are in contempt of the Court’s orders issued on 14 th August 2025.
ii. Whether the Petitioners are entitled to facilitative reliefs, including police assistance, to enable implementation of the Judgment of 12 th June 2025.
iii. Whether the Inspector General of Police ought to be enjoined as an Interested Party for purposes of enforcement and coordination.
29. At the very core of this dispute is the enforcement of a Judgment of this Court which is final, binding, and unequivocal in its terms, having expressly restored Gatoto Community Primary School to the management and control of the 1 st Petitioner as a private APBET institution, and further restrained the Respondents from any form of interference therewith. Notwithstanding the clarity, certainty, and mandatory character of that decree, the Petitioners contend that its implementation has been met with persistent obstruction and resistance, thereby necessitating the invocation of this Court’s coercive and facilitative jurisdiction to secure compliance and vindicate the authority of its orders.
30. The Court first addresses whether the procedural and substantive threshold for contempt has been met. The law is settled that contempt jurisdiction is quasi-criminal in nature, and must therefore be exercised with caution and strict adherence to due process. It requires proof of: (i) a clear and unambiguous order (ii) knowledge of the order (iii) breach and (iv) wilful disobedience.
31. These principles are firmly established in Koilel & 2 Others v Koilel & Another (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR), and Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227.
32. As was held in Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, contempt proceedings are quasi-criminal in nature, and the standard of proof is higher than on a balance of probabilities, though not as high as beyond reasonable doubt. The applicant must establish the existence of a clear order, knowledge thereof, non-compliance, and wilful disobedience.
33. The standard of proof in contempt proceedings, while not attaining the threshold of proof beyond reasonable doubt, is nevertheless higher than that applicable in ordinary civil claims on a balance of probabilities. This is so because contempt proceedings are quasi-criminal in nature, often carrying penal consequences including deprivation of liberty, and therefore demand strict scrutiny. As was stated in Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another C.A No. 24 of 2014 , “it is important to restate that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities but not as high as beyond reasonable doubt.” Similarly, in Republic v Mohammed & Another, Petition 39 of 2018 (2019) KESC 47 (KLR), the Supreme Court underscored that contempt proceedings require a standard of proof higher than in ordinary civil cases, and that allegations must be proved with a degree of precision and strictness commensurate with the gravity of the consequences attendant upon a finding of contempt.
34. The Court has carefully considered the affidavit of service sworn by Berinea Lumbasi, which confirms service of the decree upon the respective Respondents and their counsel. It is a settled principle of Kenyan jurisprudence that personal service of a court order, duly accompanied by a penal notice, ordinarily constitutes a foundational requirement in contempt proceedings, as stated in Ochino & Another v Okhombo & Others [1989] KLR . This requirement is not a mere procedural technicality, but a substantive safeguard intended to ensure that a party is placed beyond equivocation as to the existence of the order and the serious legal consequences that may follow any disobedience thereof.
35. The jurisprudential foundation governing contempt proceedings in Kenya has long been anchored on this strict requirement of personal service, properly endorsed with a penal notice, before committal proceedings may properly issue. This position, firmly articulated in Ochino & Another v Okhombo & Others [1989] KLR and subsequently reiterated in decisions such as Highlands Plant Ltd v Alice Wairimu Mwangi [2005] eKLR, underscores the mandatory nature of procedural compliance within contempt jurisdiction. The rationale is clear. An alleged contemnor must be unequivocally made aware not only of the existence of the court order but also of the penal consequences attendant upon its breach, the penal notice serving as an express and formal warning that non-compliance may attract sanctions including imprisonment or fine.
36. Over time, however, Kenyan jurisprudence has evolved beyond a rigid insistence on formal proof of personal service. The courts have progressively adopted a more substantive and purposive approach, centred on actual knowledge of the order rather than mere technical compliance with service requirements. In this regard, it is now well settled that a party who is shown to have actual knowledge of a court order cannot evade liability for contempt on the basis of absence or defect in personal service. This modern approach was expressly affirmed by the Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, where the Court held that knowledge of a court order supersedes strict compliance with the requirement of personal service.
37. The current legal position therefore reflects a principled synthesis. While personal service accompanied by a penal notice remains the orthodox and preferred procedural safeguard, the Court is nonetheless entitled, in appropriate circumstances, to dispense with strict proof of service where it is satisfied that the alleged contemnor had actual or constructive knowledge of the order. This approach ensures that contempt jurisdiction is not reduced to an instrument of procedural evasion, while at the same time preserving the fairness and safeguards inherent in proceedings that carry penal consequences.
38. That said, the law has equally recognized that knowledge of a court order may properly be inferred from a party’s participation in the proceedings or direct and intimate involvement in the litigation, even absent formal personal service. This position has been affirmed in Basil Criticos v Attorney General [2012] eKLR and Henry Musemate Murwa v Francis Owino, Principal Secretary [2021] eKLR , where the courts recognized that knowledge of a court order may be inferred from participation in proceedings or surrounding circumstances, and that liability for contempt turns on proof of knowledge and wilful disobedience rather than mere technical proof of personal service in all circumstances.
39. Applying these principles to the present matter, the Respondents are senior public officers who were directly engaged in, and intimately connected with, the proceedings culminating in the issuance of the orders of this Court. In those circumstances, the Court is satisfied that they possessed, at the very least, constructive knowledge, and in all likelihood actual knowledge, of the existence, tenor, and binding effect of the Court’s orders.
40. The gravamen of the Petitioners’ case is that, notwithstanding the subsistence and alleged knowledge of the Judgment, the Respondents engaged in a series of obstructive acts aimed at frustrating its implementation, including denial of access to Gatoto Community Primary School, forcible removal of the Petitioners from the premises, and arrests of persons associated with enforcement efforts, particularly in relation to the events of 2 nd January 2026.
41. While these allegations, if proved, would be of a serious and troubling nature, this Court is enjoined to apply the strict and exacting threshold governing contempt proceedings, which demands clear, specific, and unequivocal attribution of culpability to identifiable contemnors. It is a well-settled principle that contempt jurisdiction cannot be sustained on the basis of generalised, speculative, or unparticularised allegations, however grave the narrative may appear.
42. In the present matter, a substantial portion of the alleged acts is attributed either to unknown or unidentified individuals, or is explained by the concerned officers as arising from operational exigencies, including absence of express instructions and prevailing security considerations on the ground.
43. The Court further takes cognisance of the explanation tendered by the Officer Commanding Station, Kwa Reuben Police Station, who avers that he did not decline to comply with the Court’s orders, but instead awaited appropriate administrative direction through the established chain of command, while also raising legitimate concerns regarding safety and public order within a densely populated informal settlement.
44. In light of these competing accounts, and guided by the stringent evidentiary standard applicable in contempt proceedings, the Court is not satisfied that the Petitioners have discharged the burden of demonstrating, with requisite precision and clarity, which specific act of disobedience is attributable to which specific officer, nor has wilful and deliberate defiance of the Court’s orders been established to the required legal threshold.
45. The Court further observes that contempt proceedings require strict compliance with procedural safeguards, including service of the order together with a penal notice. The absence of clear proof of such compliance weakens the foundation of the contempt application, given the penal consequences that may follow.
46. In view of the foregoing, and guided by the authorities cited, this Court finds that the threshold for contempt has not been met at this stage. While there is evidence of friction and alleged non-compliance in the enforcement process, the Court is not satisfied that any of the named Respondents has been shown to have willfully and deliberately disobeyed the orders of this Court in the manner required by law.
47. Accordingly, the Court is not persuaded that a finding of contempt can properly issue against any party at this stage.
48. Notwithstanding the foregoing finding, the Court reiterates that its Judgment of 12 th June 2025 remains valid, binding, and fully enforceable. Section 38 of the Civil Procedure Act vests this Court with wide powers to ensure meaningful execution of its decrees, including the issuance of facilitative orders necessary to give effect to its judgment.
49. It is now well settled that a successful litigant is entitled not merely to a declaratory judgment, but to the effective realization of the fruits of that judgment, and the Court is empowered, in appropriate circumstances, to issue facilitative orders to ensure compliance and enforcement of its decrees, including, where necessary, directions for police assistance. This position has been affirmed in Hussein v Washivambi [2023] KEELC 22600 and William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & 2 Others [2017] KEELC 281, where the courts emphasized that execution mechanisms may properly be invoked to ensure that court orders are not rendered illusory.
50. The Court is satisfied that denial of access to the subject school, if allowed to persist, would not only defeat the rights of the Petitioners but would also undermine the authority and dignity of the judiciary.
51. On the question of joinder, the Court is not persuaded that the Inspector General of Police ought to be enjoined at this stage. It is trite that joinder is not an automatic procedural indulgence, but one that is only warranted where the presence of the proposed party is necessary for the effectual and complete adjudication of the issues in controversy, as aptly stated in Republic v County Government of Kitui Ex Parte Fairplan Systems Limited [2022] eKLR.
52. In the present matter, the Court is not satisfied that the alleged non-compliance discloses any systemic institutional breakdown or failure of command necessitating escalation to the highest office of the National Police Service. Rather, the material before Court points to issues capable of resolution at the operational level of the officers already properly before this Court. In those circumstances, and bearing in mind the principles of proportionality, procedural economy, and judicial restraint; the Court is of the considered view that effective compliance may be secured through proper service, supervision, and monitoring of the existing Respondents, without the need for the extraordinary step of enjoining the Inspector General at this stage.
53. The Court has also taken judicial notice of the decision in Memusi - Officer Commanding Station Kwa Reuben Police Station & 5 Others v Board of Management – Gatoto Community Primary School & 2 Others [2026] KECA 411 (KLR), wherein the Court of Appeal granted leave to appeal out of time. While this underscores the existence of an arguable appeal, it does not operate as a stay nor does it suspend the binding effect of the subsisting orders of this Court.
54. For the foregoing reasons, this Court makes the following findings and consequen
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