RULING
Summons in contempt proceedings
1.On 2.12.2025, the court issued the following order: -
“(2) The title deeds (for the company and AKM Investment Ltd) held by the 1st defendant through his legal counsel Kamau Kuria and Company Advocates shall be deposited by him or his legal counsel Kamau Kuria and Company Advocates, with the Deputy Registrar of this Division within 14 days of today.”
2.On 15.12.2025, allegations were made of disobedience of the court order by the 1st defendant prompting the court to direct and directed the 1st defendant to appear before court in person to show cause why the disobedience and why he should not be cited for contempt.
3.The hearing of the NTSC was scheduled to take place on 27.1.2026. But, the day before, the 1st defendant filed a notice of preliminary objection (PO) dated 26.1.2026 against the NTSC.
4.Mr. Sang, legal counsel for the 1st, 2nd, 6th, 13th and 14th defendants urged that the PO be heard first because it challenges the court’s jurisdiction.
5.The PO raises the following grounds: -
Of Jurisdiction
6.The 1st defendant argued that the court acted without jurisdiction in framing the charges for contempt and requiring him to plead to them. It relied on R v Lambert Houreau [1957] EA 575.
Lack of a formal contempt application
7.The 1st defendant complained of absence of a formal application for contempt and committal to jail instituted against him. The 1st defendant asserts that the NTSC is incurably defective as AKM Investments Ltd and Janus Ltd did not frame up the charges for alleged contempt and prove them as required.
8.He argues that AKM Investments Ltd and Janus Ltd have set out to embarrass the court by compelling it to abandon its duty as an umpire and descending into the arena- an act that is forbidden by law.
Of Burden of proof
9.The 1st defendant argues that contempt of court is analogous to a criminal charge preferred against a defendant in the Magistrate’s Court and the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require the 1st defendant to show cause if at all, at this stage.
10.The 1st defendant further argues that the burden of proof set out in Mutitika v Faharini Farm (1982-88) 1 KLR 863 and Maharaj v Attorney General of Trinidad and Tobago [1977] 1 ALL ER 411 has not been discharged.
Contravention of Article 50 of the Constitution
11.According to the 1st defendant, the absence of a statement of alleged acts of contempt of court committed by the 1st defendant framed by AKM Investments Ltd and Janus Ltd and supported by affidavits, the NTSC contravenes Article 50 of the Constitution.
12.The legal counsel also argued that orders were not served upon the 1st defendant and that knowledge alone is not sufficient to hold a person for contempt of court.
13.Therefore, the 1st defendant argues that the NTSC violates the rules of natural justice. To support this postulation, he relied on De Souza v Tanga Town Council [1961] EA 377 and Petition No. 36 of 2018; Hon. Christopher Odhiambo Karani v David Ouma Ochieng & Others [2018] eKLR.
14.The 1st defendant filed a list and bundle of authorities dated 27.1.2026, to wit on: -
(1) Nyamodi Ochieng Nyamogo & another v Kenya Posts and Telecommunications Corporation [1994] KECA 114 (KLR).
(2) Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR)
(3) Joho v Doshi & 4 others [2024] KECA 1569 (KLR)
15.Mr. Orenge associated himself with the submissions of Mr. Sang. He however, emphasized on the need for formal application and service in contempt of court orders, and also the court to issue a ruling on these weighty matters.
Responses
16.Mr. Mbogori for the plaintiff asserted that the court has the inherent jurisdiction to punish for contempt. He asserted that the court’s orders were express that the 1st defendant deposits the titles in court and removes security personnel he had placed in the premises. He submitted that parties are obliged to comply with court orders.
17.Mr. Mbogori submitted that a PO should not require the probing of evidence. He asserted that the 1st defendant was served with the orders issued by Hon. Mabeya J. and a penal notice was served on 7.1.2025 together with the orders. He submitted that the orders have not been reversed.
18.He also submitted that the 1st defendant was already present before the court and questioned how he could raise a preliminary objection alleging that he had not been afforded an opportunity to be heard.
19.Mr. Mbogori relied on Order 40 Rule 3 of the Civil Procedure Rules to argue that the court has inherent jurisdiction to enforce compliance with interim orders.
20.Mr. Sang retorted that there is no evidence of service.
Analysis and Determination
Nature and scope of PO
21.A preliminary objection; a) ‘consists of a point of law’; b) which if argued…may dispose of the suit; c) ‘cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’ Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Ltd [1969] EA 696
Jurisdiction and absence of a formal contempt application
22.The 1st defendant argued that the court acted without jurisdiction in framing the charges for contempt suo moto and requiring him to plead to them. He argues that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require him to show cause if at all, at this stage.
23.The 1st defendant also faulted AKM Investments Ltd and Janus Ltd for not filing a formal application for committal to jail.
24.Of significance, the court issued the NTSC to the 1st defendant during the mention of the matter on 15.12.2025. The mention was in respect of Dr. Kamau Kuria’s application for leave to cease acting for the 1st, 2nd, 6th, 13th and 14th defendants. He indicated that his advocacy had not assisted in the delivery of the title documents. He also indicated that he holds one key to the safe and the 1st defendant holds the other key which are both required to open it.
25.Mr. Mbogori for the plaintiff raised the concern that all the court’s orders have been disobeyed by the 1st defendant.
26.The court observed as follows: -
“As Dr. Kamau Kuria’s application to cease acting is being heard, the court notes with great concern that the 1st defendant is said to have persistently disobeyed court orders.
For that reason, as the emerging issues concern the integrity of proceedings and court’s authority, I direct that the 1st defendant does appear before the court on 27.1.2026 to show cause why the disobedience and why he should not be cited for contempt. He must appear in person in open court.”
Court’s power to punish contempt
27.According to the Supreme Court: ‘Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court.’ Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR),
28.Following declaration of that the Contempt Act is unconstitutional, the law governing contempt of court is section 5(1) of the Judicature Act which provides that: -
5.(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.In light of the arguments presented, it is appropriate to set out in extenso the decision in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR): -
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 v 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 v 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.”
60.Accordingly, 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.”
30.From the above, three important points are distilled: -
(1) Courts have the inherent power to enforce compliance with their lawful orders.
(2) Contempt of court is quasi-criminal proceedings which may result into penal sanctions, thus requiring proof which is higher than proof on balance of probabilities but not as high as beyond reasonable doubt.
(3) 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.
31.Thus, the 1st defendant’s complaint about the content of the NTSC issued by the court, should be seen within the entire circumstance of the case.
32.It bears repeating that, the law applicable for contempt proceedings reverted to Section 5 of the Judicature Act.
33.The English law applicable in England at the time the contempt was committed applies here.
34.As of 15.12.2025, the law applicable was Contempt of Court Act 1981 (CCA 1981) and the Civil Procedure Rules (CPR) Part 81.
35.Under Rule 81.6 of the CPR, in cases where there is no formal application to cite a party for contempt, the court can on its own initiative, issue summons to the defendant if it considers that a contempt of court may have been committed.
36.Issuance of a NTSC was, therefore, procedural, proper and lawful, thus, properly grounding court’s jurisdiction.
37.The other ground advanced that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require the 1st defendant to show cause calls for probing of evidence which removes it from the ambit of a PO, and therefore fails.
38.
39.Therefore, the grounds that the court acted without jurisdiction; that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits and that there was no formal contempt application by the plaintiff, fail.
Contravention of Article 50 of the Constitution
40.The NTSC was issued on 15.12.2025, the court directing the 1st defendant to appear before court in person to show cause why the disobedience and why he should not be cited for contempt. The purpose of the notice was not an indictment for contempt but provided him with ample opportunity to be heard on the allegations for contempt.
41.Fair hearing requirements were also reinforced by fixing the hearing of the NTSC on 27.1.2026. The 1st defendant obliged and attended court on the appointed date. Except, the day before, the 1st defendant filed a notice of preliminary objection (PO) dated 26.1.2026 against the NTSC.
42.The 1st defendant was present before the court on 27.1.2026.
43.Thus, the court finds that the alleged infringement of the 1st defendant’s right to fair hearing under Article 50 of the Constitution is unfounded.
44.I should also state that, contrary to the assertion by the legal counsel for the 1st defendant, clear knowledge of court orders is sufficient for purposes of contempt of court. The 1st defendant was aware and had actual knowledge of the court orders herein. The advocacy of his earlier advocate in seeking him to comply with the order did not yield anything. Now, for avoidance of doubt, he is reminded once again that he was ordered to deposit the titles with the DR of this Division within 14 days of the order. He is now given 14 days to deposit the titles in question with the DR of this division. He will appear before the court in person on the appointed date to confirm or otherwise of compliance.
45.In conclusion, the court acted within its inherent jurisdiction to summon the 1st defendant upon allegations of deliberate disobedience of court orders. The NTSC did not infringe his right to fair hearing; it provided him with ample opportunity to be heard.
Disposal
46.In the upshot, the PO dated 26.1.2026 is dismissed with costs for want of merit.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Mmbogori for Plaintiff
Kipkemoi for 1st, 2nd, 6th, 13th & 14th Defendants
Orenge for 3rd Defendant
Ms. Gitonga for 4th Defendant
Ms. Mangich for 7th Defendant
Kihang’a for 16th Defendant
Kibaara for 12th Defendant
Mwangi for 8th Defendant
Ms. Yala for 9th Defendant
Jan Mohamed for 10th Defendant
Ms. Morara for 5th Defendant
CA Kinyua
Summons in contempt proceedings
1.On 2.12.2025, the court issued the following order: -
“(2) The title deeds (for the company and AKM Investment Ltd) held by the 1st defendant through his legal counsel Kamau Kuria and Company Advocates shall be deposited by him or his legal counsel Kamau Kuria and Company Advocates, with the Deputy Registrar of this Division within 14 days of today.”
2.On 15.12.2025, allegations were made of disobedience of the court order by the 1st defendant prompting the court to direct and directed the 1st defendant to appear before court in person to show cause why the disobedience and why he should not be cited for contempt.
3.The hearing of the NTSC was scheduled to take place on 27.1.2026. But, the day before, the 1st defendant filed a notice of preliminary objection (PO) dated 26.1.2026 against the NTSC.
4.Mr. Sang, legal counsel for the 1st, 2nd, 6th, 13th and 14th defendants urged that the PO be heard first because it challenges the court’s jurisdiction.
5.The PO raises the following grounds: -
Of Jurisdiction
6.The 1st defendant argued that the court acted without jurisdiction in framing the charges for contempt and requiring him to plead to them. It relied on R v Lambert Houreau [1957] EA 575.
Lack of a formal contempt application
7.The 1st defendant complained of absence of a formal application for contempt and committal to jail instituted against him. The 1st defendant asserts that the NTSC is incurably defective as AKM Investments Ltd and Janus Ltd did not frame up the charges for alleged contempt and prove them as required.
8.He argues that AKM Investments Ltd and Janus Ltd have set out to embarrass the court by compelling it to abandon its duty as an umpire and descending into the arena- an act that is forbidden by law.
Of Burden of proof
9.The 1st defendant argues that contempt of court is analogous to a criminal charge preferred against a defendant in the Magistrate’s Court and the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require the 1st defendant to show cause if at all, at this stage.
10.The 1st defendant further argues that the burden of proof set out in Mutitika v Faharini Farm (1982-88) 1 KLR 863 and Maharaj v Attorney General of Trinidad and Tobago [1977] 1 ALL ER 411 has not been discharged.
Contravention of Article 50 of the Constitution
11.According to the 1st defendant, the absence of a statement of alleged acts of contempt of court committed by the 1st defendant framed by AKM Investments Ltd and Janus Ltd and supported by affidavits, the NTSC contravenes Article 50 of the Constitution.
12.The legal counsel also argued that orders were not served upon the 1st defendant and that knowledge alone is not sufficient to hold a person for contempt of court.
13.Therefore, the 1st defendant argues that the NTSC violates the rules of natural justice. To support this postulation, he relied on De Souza v Tanga Town Council [1961] EA 377 and Petition No. 36 of 2018; Hon. Christopher Odhiambo Karani v David Ouma Ochieng & Others [2018] eKLR.
14.The 1st defendant filed a list and bundle of authorities dated 27.1.2026, to wit on: -
(1) Nyamodi Ochieng Nyamogo & another v Kenya Posts and Telecommunications Corporation [1994] KECA 114 (KLR).
(2) Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR)
(3) Joho v Doshi & 4 others [2024] KECA 1569 (KLR)
15.Mr. Orenge associated himself with the submissions of Mr. Sang. He however, emphasized on the need for formal application and service in contempt of court orders, and also the court to issue a ruling on these weighty matters.
Responses
16.Mr. Mbogori for the plaintiff asserted that the court has the inherent jurisdiction to punish for contempt. He asserted that the court’s orders were express that the 1st defendant deposits the titles in court and removes security personnel he had placed in the premises. He submitted that parties are obliged to comply with court orders.
17.Mr. Mbogori submitted that a PO should not require the probing of evidence. He asserted that the 1st defendant was served with the orders issued by Hon. Mabeya J. and a penal notice was served on 7.1.2025 together with the orders. He submitted that the orders have not been reversed.
18.He also submitted that the 1st defendant was already present before the court and questioned how he could raise a preliminary objection alleging that he had not been afforded an opportunity to be heard.
19.Mr. Mbogori relied on Order 40 Rule 3 of the Civil Procedure Rules to argue that the court has inherent jurisdiction to enforce compliance with interim orders.
20.Mr. Sang retorted that there is no evidence of service.
Analysis and Determination
Nature and scope of PO
21.A preliminary objection; a) ‘consists of a point of law’; b) which if argued…may dispose of the suit; c) ‘cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’ Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Ltd [1969] EA 696
Jurisdiction and absence of a formal contempt application
22.The 1st defendant argued that the court acted without jurisdiction in framing the charges for contempt suo moto and requiring him to plead to them. He argues that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require him to show cause if at all, at this stage.
23.The 1st defendant also faulted AKM Investments Ltd and Janus Ltd for not filing a formal application for committal to jail.
24.Of significance, the court issued the NTSC to the 1st defendant during the mention of the matter on 15.12.2025. The mention was in respect of Dr. Kamau Kuria’s application for leave to cease acting for the 1st, 2nd, 6th, 13th and 14th defendants. He indicated that his advocacy had not assisted in the delivery of the title documents. He also indicated that he holds one key to the safe and the 1st defendant holds the other key which are both required to open it.
25.Mr. Mbogori for the plaintiff raised the concern that all the court’s orders have been disobeyed by the 1st defendant.
26.The court observed as follows: -
“As Dr. Kamau Kuria’s application to cease acting is being heard, the court notes with great concern that the 1st defendant is said to have persistently disobeyed court orders.
For that reason, as the emerging issues concern the integrity of proceedings and court’s authority, I direct that the 1st defendant does appear before the court on 27.1.2026 to show cause why the disobedience and why he should not be cited for contempt. He must appear in person in open court.”
Court’s power to punish contempt
27.According to the Supreme Court: ‘Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court.’ Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR),
28.Following declaration of that the Contempt Act is unconstitutional, the law governing contempt of court is section 5(1) of the Judicature Act which provides that: -
5.(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.In light of the arguments presented, it is appropriate to set out in extenso the decision in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR): -
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 v 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 v 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.”
60.Accordingly, 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.”
30.From the above, three important points are distilled: -
(1) Courts have the inherent power to enforce compliance with their lawful orders.
(2) Contempt of court is quasi-criminal proceedings which may result into penal sanctions, thus requiring proof which is higher than proof on balance of probabilities but not as high as beyond reasonable doubt.
(3) 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.
31.Thus, the 1st defendant’s complaint about the content of the NTSC issued by the court, should be seen within the entire circumstance of the case.
32.It bears repeating that, the law applicable for contempt proceedings reverted to Section 5 of the Judicature Act.
33.The English law applicable in England at the time the contempt was committed applies here.
34.As of 15.12.2025, the law applicable was Contempt of Court Act 1981 (CCA 1981) and the Civil Procedure Rules (CPR) Part 81.
35.Under Rule 81.6 of the CPR, in cases where there is no formal application to cite a party for contempt, the court can on its own initiative, issue summons to the defendant if it considers that a contempt of court may have been committed.
36.Issuance of a NTSC was, therefore, procedural, proper and lawful, thus, properly grounding court’s jurisdiction.
37.The other ground advanced that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits to require the 1st defendant to show cause calls for probing of evidence which removes it from the ambit of a PO, and therefore fails.
38.
39.Therefore, the grounds that the court acted without jurisdiction; that the NTSC does not meet the constitutional standards of specificity and witness statements or supporting affidavits and that there was no formal contempt application by the plaintiff, fail.
Contravention of Article 50 of the Constitution
40.The NTSC was issued on 15.12.2025, the court directing the 1st defendant to appear before court in person to show cause why the disobedience and why he should not be cited for contempt. The purpose of the notice was not an indictment for contempt but provided him with ample opportunity to be heard on the allegations for contempt.
41.Fair hearing requirements were also reinforced by fixing the hearing of the NTSC on 27.1.2026. The 1st defendant obliged and attended court on the appointed date. Except, the day before, the 1st defendant filed a notice of preliminary objection (PO) dated 26.1.2026 against the NTSC.
42.The 1st defendant was present before the court on 27.1.2026.
43.Thus, the court finds that the alleged infringement of the 1st defendant’s right to fair hearing under Article 50 of the Constitution is unfounded.
44.I should also state that, contrary to the assertion by the legal counsel for the 1st defendant, clear knowledge of court orders is sufficient for purposes of contempt of court. The 1st defendant was aware and had actual knowledge of the court orders herein. The advocacy of his earlier advocate in seeking him to comply with the order did not yield anything. Now, for avoidance of doubt, he is reminded once again that he was ordered to deposit the titles with the DR of this Division within 14 days of the order. He is now given 14 days to deposit the titles in question with the DR of this division. He will appear before the court in person on the appointed date to confirm or otherwise of compliance.
45.In conclusion, the court acted within its inherent jurisdiction to summon the 1st defendant upon allegations of deliberate disobedience of court orders. The NTSC did not infringe his right to fair hearing; it provided him with ample opportunity to be heard.
Disposal
46.In the upshot, the PO dated 26.1.2026 is dismissed with costs for want of merit.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Mmbogori for Plaintiff
Kipkemoi for 1st, 2nd, 6th, 13th & 14th Defendants
Orenge for 3rd Defendant
Ms. Gitonga for 4th Defendant
Ms. Mangich for 7th Defendant
Kihang’a for 16th Defendant
Kibaara for 12th Defendant
Mwangi for 8th Defendant
Ms. Yala for 9th Defendant
Jan Mohamed for 10th Defendant
Ms. Morara for 5th Defendant
CA Kinyua