REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KWALE
ELC CAUSE NO 56 OF 2021
IN THE MATTER OF SECTION 5 OF THE JUDICATURE ACT
AND
IN THE MATTER OF SECTION 29 OF THE ENVIRONMENT AND LAND COURT ACT
I. Introduction
1. Before the Honourable Court for its determination is the Notice of Motion application dated 25th November 2025. It was filed under Certificate of Urgency by the Law firm of Messrs. Elkana Mogaka & Associates Advocates. It is based on an alleged disobedience of this Honourable Court’s orders issued on 28th February 2025 as stated by the Applicant
2. The application was premised upon the provisions of Order 51 Rule 1, 10 (1) Civil Procedure Rules, 2010 & Sections 1A,1B,3A of the Civil Procedure Act, Cap. 21 and Section 5 of the Judicature Act, Cap. 8 and all other enabling provisions of the law.
3. Upon service, the application was opposed by a Replying affidavit sworn on 30th January 2026 by BRIAN IKOL the 7th Respondent’s director of legal affairs and dispute resolution.
4. There are no responses by the rest of the parties cited for contempt and who are the 1st, 5th ,6th and 8th Respondents.
II. The Applicants Case
5. The Applicant sought for the following orders:-
a). Spent.
b). That pending hearing & determination of the application & main suit, this Honourable Court be pleased to grant the following orders;
i. Leave be issued to institute committal proceedings for contempt of court against the 1st, 5th ,6th ,7th, and 8th Respondents [the Contemnors].
ii. A notice to show cause issued against the Contemnors.
iii. The following officers be cited for contempt and committed to civil jail.
a. County Attorney of the 1st Respondent.
b. The 5th and 6th Respondents
c. Chief Executive Officer of the 7th Respondent.
d. Principal Secretary of the 8th Respondent.
iv. In the alternative to committal to civil jail the Honourable Court be pleased to issue a fine for contempt of court payable by each of the 1st, 5th,6th ,7th and 8th Respondents respectively.
v. The injunctive orders issued on 28th February 2025 be restored until the conclusion of the suit.
vi. The Coastal Regional Commander be directed to ensure compliance with the 28th February 2025 court orders.
c). Costs of this application be borne by the 1st, 5th,6th ,7th and 8th Contemnors.
d). Any other orders that this Honourable Court seems fit to grant
6. The application was premised upon the grounds, testimonial facts and averments made out under the 21 Paragraphed Supporting Affidavit of ELKANA MUSYOKI MOGAKA, an Advocate of High Court of Kenya, having the conduct of the matter on behalf and on record for the Applicant. The deponent stated as follows:-
(a) He was the Counsel for the Applicant and hence conversant to the facts of the case and competent to swear this Affidavit on their behalf.
(b) There were multiple orders of this honourable court that had been disobeyed, neglected and ignored by the government Respondents in this suit.
(c) Their apathy in respecting the issued directives was a threat to the Court’s inherent authority and its “lis pendens” jurisdiction over the subject matter.
(d) The three ( 3 ) Court Orders that had been breached were:-
i. The court order dated 7th October 2021;
ii. The injunctive orders issued on 28th February 2025;
iii. Site visit scheduled for the 8th November 2025.
(e) The continued breach of the court orders had seen the construction by the Plaintiff and the 7th Respondent’s proceedings unabated.
(f) The Court saw for itself the level of construction proceedings during the site visit carried out on 7th November 2025 which he was the only one who attended with his client.
(g) The open disobedience means that the directions of the Court had been issued in vain which was a real travesty of justice.
(h) It was averred that were it not for the fact that the contemnors were high level government agencies then they would already be severely punished.
(i) Their status as Government agencies means they had sidestepped the orders without fear of repercussions.
(j) Even where the Contemptor was a Government, the Courts should not fold their hands in helplessness and watch as their orders were disobeyed with impunity left right and centre.
(k) The dignity and authority of the Court must be protected and those who flagrantly disobey them must be punished, lest they lead the country to a state of anarchy.
(l) During the mention on 18th November 2025 this Honourable Court noted the Respondents actions and decided to fast track the hearing of the matter.
(m) That this Honourable Court has the dual option of either imposing warrants of arrest against the officers of the contemnors or issuing hefty fines to each of the contemnors.
(n) The court was invited to exercise its discretion to grant the orders sought inorder to issue an exemplary statement which serves as a lesson to all government agencies.
III. The 7th Respondent’s Case
7. The 7th Respondent opposed the application through a 13 Paragraphed supporting affidavit sworn by BRIAN IKOL the Director Legal Affairs and Dispute Resolution at the National Land Commission [7th Respondent].
8. It was averred that the 7th Respondent was not served with the application giving rise to the referenced orders subject of this ruling and the orders listed in the Applicants supporting affidavit including the ones for 28th February 2025.
9. That the 7th Respondent only became aware of the orders upon receipt of an email dated 19th November 2025 forwarding the Applicant’s further list of witnesses and supplementary affidavit and which were respondent to promptly on 20th November 2025 requesting the physical filing of pleadings and the instant application.
10. The deponent stated that physical service was effected upon the 7th Respondent on 1st December 2025. That the 7th Respondent then filed a memorandum of appearance on 19th January 2026. The deponent stated that at no given point has the 7th Respondent been informed of the hearings and applications before this honourable court or any site visit.
11. It was deposed that the 7th Respondent could not be punished for acts it was not even aware of. That the disobedience of any orders was as a result of the lack of knowledge of the proceedings and orders and they could not be punished of any omission that was not of their own making.
12. It was lastly averred that granting the orders sought would result in a grave miscarriage of justice, punishing a government body that was kept in the dark and deprived of the chance to obey the Court's orders. That in the interests of justice and fairness, the contempt application against the 7th Respondent ought to be dismissed in its entirety.
IV. Submissions
13. On 28th January, 2026, when the parties appeared before this court, directions were provided to the effect that the Notice of Motion application dated 25th November 2025 be canvassed by way of written submissions. Pursuant to that the court reserved the ruling dated for 10th March 2026 to deliver the ruling accordingly. However due to the hefty workload the same has been delivered on 13th March 2026. It should be noted that only the 7th Respondent complied with the said orders.
A. The Written Submissions by the 7th Respondents Submissions
14. The 7th Respondent’s submissions are dated 30th January 2026 and were filed by Magdaline Mutheu Advocate. M/s. Mutheu Advocate identified a sole issue for determination and which was whether the Applicant had proved to the required standard that the 7th Respondent was in contempt of court.
15. It was submitted that as per the definition of Section 4 of the Contempt of Court Act, the essence of contempt lies in the wilful disobedience of court orders with no wilful or lawful excuse. Therefore, it could be deduced that for an action or omission to constitute contempt of court, it has to be done wilfully and there must not be a lawful justification for it. The Counsel submitted that an allegation of contempt of court is not one to be taken lightly as it spoke directly to the authority of the court and bears severe consequences which, as this Honourable court noted, threaten the personal liberties of the persons held in contempt. It was therefore imperative that such allegations be proven strictly before the court can make its findings.
16. It was stated that contempt proceedings are in the nature of criminal proceedings and hence proof of the same is beyond a balance of probability. Reference was made to the holding in the case of: “Sheila Cassatt Issenberg & another – Vesus - Anthony Machatha Kinyanjui [2021] eKLR and Ominde & Another – Versus - County Government of Vihiga & 2 others; Mmbwanga (Suing as the Legal Representative of the Estate of Paul Nabwanga (Deceased)) (Interested Party) [2025] KEELC 18569 (KLR].
17. On the elements of contempt reference was made to what was laid out in the case of:- “Cecil Miller – Versus - Jackson Njeru & Another [2017] KEНС 1499 (KLR)”, where the court was guided by the book 'Contempt in Modern New Zealand' which listed them as follows: -
a) The terms of the order (or injunction or undertaking were clear and unambiguous and were binding on the Defendant.
b) The Defendant had knowledge of or proper notice of the terms of the order.
c) The Defendant had acted in breach of the terms of the order and.
d) The Defendant conduct was deliberate. That all the four elements must be strictly proved. Failure to prove any one is fatal to the contempt claim.
18. The Learned Counsel submitted that the Applicant had not annexed any evidence of the orders referred to save for the ones dated 28th February 2025. It was stated that the first element requires the terms of the order to be clear, unambiguous and binding upon the 7th Respondent. Whereas the terms are clear and unambiguous, the order fails this test as it was not binding to the 7th Respondent. None of the orders made were specifically directed to the 7th Respondent rather, they were directed to the 1st Respondent and the OCS Diani Police Station. Additionally, for contempt to be ascertained, proof of knowledge of the order has to be demonstrated. Per the terms of the order dated 28th February 2025, the Applicant was required to serve it upon the 7th Respondent.
19. It was submitted that there was no affidavit of service that confirmed service of the pleadings upon the Respondent. That the Applicant's Affidavit of Service dated 3rd December 2025 wherein he purports to have served the 7th Respondent does not specify what documents were served and actually proves that 7th Respondent only became aware of the existence of the instant suit on 20th November 2025 as seen on page 6 of the Affidavit of Service where the 7th Respondent requests for physical service of the Application and the Pleadings.
20. The 7th Respondent lastly submitted that it would be erroneous finding the 7th Respondent in contempt when they had no knowledge of the existence of the court order dated 28th February 2025 or the site visit scheduled for 7th November 2025. The court was urged to find that the Applicant had failed to prove the allegations of contempt levelled against the 7th Respondent and thus dismiss the claims and awards the costs of this application to the 7th Respondent.
V. Analysis and Determination
21. The Honorable Court has keenly considered all the pleadings filed, to wit the Notice of Motion application dated 25th November 2025 filed by the Applicant, the supporting affidavit and the Replying Affidavit by the 7th Respondent herein, the written submissions and the authorities cited. In order to arrive at an informed, fair and balanced decision, the issues for determination by this Honorable Court are three ( 3 ) as follows: -
a) Whether the application by the Applicant meets the threshold for contempt of Court?
b) Whether this court should punish the 1st, 5th,6th ,7th and 8th Respondents for being in contempt of the court orders made on 28th February 2025.
c) Who bears the costs of the application dated 25th November 2025?
ISSUE No. a). Whether the application by the Applicant meets the threshold for contempt of Court?
22. Under this sub – heading the Honourable Court shall be examining the main concept of contempt of Court and its consequences thereof. Contempt of Court has been defined as conduct or action that defies or disrespects the authority of the Court. The nature and purpose of contempt proceedings was summarised in the case of “Samuel M. N. Mweru & Others – Versus - National Land Commission & 2 others [2020] eKLR” where Mativo J stated:-
“Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest”.
23. The philosophy around this concept is that Court orders are sacrosanct. They are not proposals or suggestions nor a formality. They are to be obeyed at all costs. Should anyone be aggrieved by them, the only available remedy is to come back to court and have them either varied or reviewed or set aside or prefer an appeal. In the “Hadkinson – Versus – Hadkinson (1952) 2 ALL ER. 567” it was held 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 contempt jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void”
24. Additionally, the Court of Appeal stated in the case of: “Econet Wireless Kenya Limited – Versus – Minister for Information and Communication & Another (2005) eKLR held:-
“….it is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts are upheld at all times. This Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal with proven contemptors”
25. It is common knowledge that the Contempt of Court Act 2016 was declared unconstitutional for lack of public participation as required by Articles 10 and 118 (b) of the Constitution of Kenya and encroaches on the independence of the Judiciary (See Kenya Human Rights Commission – Versus - Attorney General & another [2018] eKLR).
26. I am alive to the fact that the courts have reverted to Section 5 of the Judicature Act which provides that the law of contempt of court applicable in Kenya is the law presently applicable in England. The instant application is premised upon the said statute. The Court of Appeal in the case of:- “Al Hujura Agency Limited – Versus - Director-General, National Employment Authority [2021] eKLR” as was as stated by the High Court at Kajiado in the case of:- “Republic – Versus - Kajiado County & 2 others ex parte Kilimanjaro Safari Club Limited [2019] eKLR” held that: -
“in light of the Contempt of Court Act being declared unconstitutional, the court must revert to the law which governed contempt of court prior to declaration of unconstitutionality; the Court has a responsibility in maintenance of the rule of law, and there can be no gap in the application of the rule of law; in the absence of a means of enforcement of a remedy, the Court is within its right to adopt such a procedure as would effectually give meaningful relief to the aggrieved Party; and that such residual power is aimed at meeting the ends of justice, and avoidance of abuse of the process of court.”
27. While upholding the above decision, the Court of Appeal had this to say: - “
46.The Court would therefore fall back on Articles 159 and 165(6) of the Constitution, read with English Law on committal for contempt of court under Rule 84.1 of the English Civil Procedure Rules, which deals with breach of Judgments, Order or Undertakings, applicable by virtue of Section 5[1] of the Judicature Act. 47. Section 5(1) of the Judicature Act 2012 provides that the High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of sub - ordinate courts.”
28. It is thus evident that the provision of Section 5 (1) of the Judicature Act, Cap. 8 grants the High Court and the Court of Appeal the power to punish for contempt. It provides:(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England and that power shall extend to upholding the authority and dignity of subordinate courts.
29. Mativo J. restated the test for establishing contempt in his decision in “Samuel M. N. Mweru [Supra] where he stated –
“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove
(i) the terms of the order,
(ii) Knowledge of these terms by the Respondent,
(iii) Failure by the Respondent to comply with the terms of the order.
Upon proof of these requirements the presence of wilfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -
"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -
(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
(b) the defendant had knowledge of or proper notice of the terms of the order;
(c) the defendant has acted in breach of the terms of the order; and
(d) the defendant's conduct was deliberate.”
30. The Constitutional Court of South Africa in the case of “Kristen Carla Burchell – Versus - Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005 stated as follows: -
“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”
31. The Supreme court in the case of:- “Githiga & 5 others – Versus - Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment)”, discussed different aspects of contempt and rendered itself as follows:-
“Due to the quasi-criminal nature of contempt proceedings and the gravity of the consequences that flow from these proceedings, courts are required to adhere to the principles of natural justice, procedural fairness, and the right to a fair hearing. This is because, in contempt proceedings, the liberty of the subject is usually at stake; therefore, if a party alleges breaches of his fundamental rights and freedoms as envisaged under the Constitution, albeit, at the Court of Appeal, this court cannot afford to shut its eyes to such serious legal issues that call for settling as the apex court.”
32. The court in the same citation further held that:-
“Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. We note that the Contempt of Court Act having been declared unconstitutional in Kenya Human Rights Commission – Versus - Attorney General & Another [2018] eKLR on 9th November, 2018 the instructive provision remains section 5(1) of the Judicature Act which grants the High Court and the Court of Appeal the power to punish for contempt. It provides:(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.
58.In enforcing compliance with lawful court orders, the procedures adopted by the court must be fair and reasonable, in which full opportunity is given to an alleged contemnor to defend himself or herself. This is because contempt proceedings, being quasi-criminal, require a higher standard of proof than in normal civil cases, and one can only be committed to civil jail or penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability.
59.This was the position taken by this court in Republic – Versus - Ahmad Abolfathi Mohammed & another SC Criminal Application No 2 of 2018 [2018] eKLR where we stated: “It is, therefore, evident that not only do contemnors demean the integrity and authority of courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of court is well established. In the case of Mutitika – Versus - Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the 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 an offence which can be said to be quasi-criminal in nature.”
33.. Accordingly, the provision of Article 50(2) of the Constitution on the right to a fair trial imposes a duty on the court to guarantee the parties to contempt proceedings procedural justice by evaluating the evidence brought forth by all parties. We note that, while there exists no fixed content to the duty to afford procedural fairness, the fairness of procedure depends on the nature of the matters in issue and that would constitute a reasonable opportunity for parties to present their cases in any given circumstance. Procedural fairness in the administration of justice involves the fair hearing rule and the rule against bias. The fair hearing rules require a decision maker to inter alia afford a person an opportunity to be heard before making any decision affecting his/her interests.
34. Likewise, procedural fairness in decision-making requires courts not to deprive any person of their right without due process of the law, a fundamental precept that implies that the right of a person affected by any adverse decision or action is present before a tribunal that pronounces judgment upon the question of life, liberty, or property in its most comprehensive sense, to be heard by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.
35. As such, the doctrine of due process encompasses the right to be treated fairly, efficiently, and effectively in the administration of justice. This court acknowledged that due process is a fundamental pillar of the rule of law under the Constitution that should be observed by all courts in the administration of Justice in the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - Independent Electoral and Boundaries Commission & 7 others SC Petition No 23 of 2014 [2015] eKLR” where we stated:
“[97] All courts must consider the principles and values of the rule of law, participation of the people, equity, inclusiveness, equality, human rights, transparency, and accountability. This is because the four corners of due process of the law, specifically the right to be heard and the right to a fair hearing, require that both parties be heard if an issue is raised before the court in order to accord the court the opportunity to pronounce itself on the issue.”
36. Similarly, the United States Supreme Court in “Goldberg – Versus - Kelly, 397 US 254, 267 (1970)” emphasized that the fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. From the foregoing, courts are required to adhere to the principles of procedural fairness and due process in the administration of justice.”
37. As discussed above herein, contempt proceedings are likened to criminal proceedings given the repercussions that come along with disobedience of court orders. In essence they are to be proved with military precision and not just mere allegations that are not substantiated with evidence.
ISSUE No. b). Whether this court should punish the 1st, 5th ,6th ,7th and 8th Respondents for being in contempt of the court orders made on 28th February 2025
38. It is not in dispute that injunctive orders were issued by the court on 28th February 2025. The issue in contention is whether the said orders or the previous orders were served upon the Respondents being cited for contempt. Prior to proceedings further, the issue of service is critical. As the Court of Appeal stated in the case of: “Nyamodi Ochieng Nyamogo & Another – Versus – Kenya Post & Telecommunications Corporation (1974) KECA 114 (KLR)” held thus:-
“Necessity of personal service. As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. Where the order is made against a company, the order may only be enforced against an officer of the company if this particular officer has been served personally with a copy of the order. Keeping the importance of personal service of the order in mind we now take a look at the aforesaid two copies if order……..”
39. In the instant case, I have keenly perused the affidavit in support of the contempt application, there seems to be no affidavit of service attached and which would confirm that indeed the orders were served upon the alleged contemnors and they are in blatant disregard of the said orders. The 7th Respondent in its response to the application stated that no service of the pleadings or order was ever served upon them and they had to request for the pleadings after receiving an email dated 19th November 2025 forwarding the Applicants further list of witnesses and supplementary affidavit and which were respondent to promptly on 20th November 2025.
40. From the record, the court is not convinced that any evidence has been tendered in proof of allegations that despite the injunction orders being served upon the Respondents, they have invaded the suit property and took possession of it by utilising it in terms of progressing with development of the same. I am in agreement with Odunga J (as he then was) in the case of:- “Alfred Mutua – Versus - Boniface Mwangi [2022] eKLR held that:
“22. In my view, considering the seriousness with which the Court takes contempt of court proceedings, every stage of the hearing must be expressly clear to the Defendant and any ambiguity must be resolved in favour of the Defendant since such proceedings are quasi-criminal in nature, otherwise, a benefit of doubt would inure to the benefit of the Defendant.”
41. The court is inclined to giving the 1st, 5th ,6th 7th and 8th Respondents a benefit of doubt. The said Respondents might get off the hook this time round for failure by the Applicant in proving that they were unaware of the orders as proper service was not effected upon them. However, the it will not be without a stern warning that court orders and directions ought to be strictly adhered to/followed and given the due respect deserved as blatant disregard and abuse of court orders leads not only to occurrence of injustices but abuse of the judicial system. Without the Court wanting to ascend to the arena of litigation with the parties, on 7th November, 2025 during the scheduled Site Visit (“Locus in Quo”) while the Court and the Applicants were the only parties present, all the others decided to give it a wide batch. The Court was not impressed at all as no one send an apology nor provide tangible reason for not being present. was present. Suffice it to say, I am guided by the dictum by the South African Constitutional Court in “Pheko and Others – Versus - Ekurhuleni Metropolitan Municipality (No 2) (CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015)” observed that: -
“The rule of law, a foundational value of the constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”
42. Nonetheless, I wish to point out that I have not come across any orders discharging the injunctive orders of 28th February 2025 of having it set aside. The prayer for restoration of the said orders is thus misplaced and ambiguous in nature. For this reasons, I strongly hold that this orders must be adhered with and/or obeyed at all costs.
ISSUE No. c). Who bears the costs of the application dated 25th November 2025?
43. It is trite that the issue of costs is at the discretion of the Court. Costs means the award that is granted to a party at the conclusion of the legal action and /or proceedings.
44. The proviso of Section 27(1) of the Civil Procedure Act, Cap. 21 "costs follow the event" unless the court, for good reason, orders otherwise. By event it means the results of the legal action. This discretion must, however, be exercised judiciously.
45. In the case of:- “Rai & 3 others – Versus - Rai & 4 others [2014] KESC 31 (KLR)”, the Supreme Court emphasized that while costs normally follow the event, courts have the discretion to depart from this principle for compelling reasons, including the conduct of the parties and the stage at which the withdrawal occurs. In this instant case, from the circumstances herein, I think it will be proper for each party to bear its own costs.
46. Before penning off, as stated above, the court is aware of the fact that several suits are before this court over a similar subject matter with the one in the instant suit. These include ELC No 139 of 2021, ELC No 140 of 2021, ELC No 025 of 2022, ELC No 021 of 2023 and ELC [OS] No E007 of 2023. It is in the interest of justice that these suits are expeditiously heard and thus proceeds for hearing at the earliest opportune time in order to resolve issues surrounding the subject matter in all the listed suits. Parties are urged to endeavour having the main suit heard and determined as opposed to further filing of other numerous applications that have stalled the matter.
VI. Conclusion & Disposition
47. Ultimately, upon causing intensive analysis of the framed issues herein, the Honourable Court based on the principles of Preponderance of Probabilities and the balance of convenience, holds that the instant application is not merited and thus fails. For avoidance of doubt therefore, the Court proceeds to grant the following orders: -
a) THAT the Notice of Motion application dated 25th November 2025 be and is hereby dismissed.
b) THAT parties urged to strictly adhere with the injunction orders issued by this Court on 28th February, 2025 without fail.
c) THAT for expediency sake, there be a hearing on 19th June, 2026 preferably through Physical means.
d) THAT all the matters being:-
i. ELC No. 056 of 2021;
ii. ELC No. 139 of 2021;
iii. ELC No. 140 of 2021;
iv. ELC No. 025 of 2022;
v. ELC No. 121 of 2023;
vi. ELC No. (OS) No. E007 of 2003, to proceed together for hearing as scheduled.
e) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS
VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS
…………10TH ………. DAY OF ………. MARCH ………….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Amakobe Advocate for the Plaintiffs.
c) Mr. Mogaka Advocate for the 1st Defendant.
d) Mr. Karera Advocate for Defendant.
e) M/s. Kalaine Advocate for the National Land Commission (NLC).
f) No appearance for the 2nd ,3rd , 4th & 5th Defendants.