Applicants Case
The plaintiffs have come to court vide application dated 8.12.2025 praying for orders this Honourable Court be pleased to find the Defendant's Chief Executive Officer/Director General Eng. Silas Kinoti and the Defendant's director Gabriel Ngigi Kinyanjui in contempt of the orders of the Honourable Court granted on 31st July 2025. They seek orders that 1st Defendant's Chief Executive Officer/Director General Eng. Silas Kinoti and the 2nd Defendant's director Gabriel Ngigi Kinyanjui be arrested and committed to civil jail for a term not exceeding six months. This Honourable Court be pleased to order that the Defendants should not be heard by the Court until they purge the contempt. That the costs of this application be provided for.
The application is based on grounds that the Honourable Justice Stephen Kibunja granted an injunction Order on 31 July, 2025 which barred the Defendants from encroaching into the plaintiffs Properties Plots Nos. KILIF1/MTWAPA/71, KILIF1/MTWAPA/476 and KILIF1/MTWAPA/477 pending the hearing of the Plaintiffs application dated 28th July, 2025.
The Defendants having been duly served with the Plaintiffs application dated 28th July, 2025 attended Court through their Advocates, the Senior Litigation Counsel, Attorney General's office, Mr. Penda who was present when the said Court Orders were issued.
On Friday 5th December, 2025, the Defendants once against entered into trespassed and encroached into the suit properties and resumed the excavations, sand harvesting and road works on the suit properties.
The applicant believes that Mr Amason Kingi, the Honourable Speaker of the Senate who has interest in neighboring Plot KILIFI/MTWAPA/ 400 which has no access road, is the force behind the actions of the Defendants to construct a road through his property by whatever means.
The plaintiffs lament that the Defendants have acted as though they are above the law, they have no legal mandate in the geographical area, they have failed to comply with any legal requirement for public consultation to construct the subject road and therefore they have no qualms unlawfully and unconstitutionally expropriating the Plaintiffs properties. According to the plaintiffs, the defendants are deliberately disobeying and flagrantly breaching the Court Orders to please powerful public officials with impunity, in utter contempt and disdain of the Court Orders.
The application is supported by the affidavit of David Mwangi Wahome the director of the 1st plaintiff who states that the 1st plaintiff is the registered owner of the property no. KILIF1/MTWAPA/71 and KILIF1/MTWAPA/476 whereas the 2nd and 3rd plaintiffs are the administrators of the estate of Anne Gathoni the registered owner of
KILIF1/MTWAPA/477. That Parcels numbers KILIF1/MTWAPA/476 and 477 were subdivided by his late father from KILIF1/MTWAPA/62.
On 26th July 2025, the defendants unlawfully encroached on the suit property and began expansion of a road of access. The plaintiffs obtained an injunction order on the 31st of July 2025pending the hearing of the application dated 28th July 2025. The defendants counsel Mr Penda was present when the order was granted. The court order was served upon the 1st defendant’s officers and the 2nd defendant’s director on 14th August 2025. On the 5th of December 2025, the defendants once again encroached on the said property and resumed excavations in breach of the court order.
On the same day, the Plaintiffs and their Advocate Caroline Katisya informed the 1st Defendant's chief Legal Officer Mr. Peter Bosire of the encroachment and trespass in contempt of the Court Orders and informed the Deputy OCS, Ndonya Police Station of the said encroachment and trespass in contempt of the Court Orders, the Deputy OCS declined to record the report in the occurrence book and further declined to intervene.
On 5th December, 2025, the Deputy OCS, Ndonya Police Station, who had earlier refused 'to be involved, accompanied, protect and assigned 3 police officers to the Defendant's contractors as they breached the Court Orders. The Defendants are deliberately disobeying and flagrantly breaching the Court Orders to please powerful public officials with impunity, in utter contempt and disdain of the Court Orders.
The applicant contends that at every court appearance, the Defendant's Advocate has claimed that they need to undertake a survey to confirm whether they have encroached on the suit properties or not and thereafter they will be able to respond to the Plaintiffs application. The Defendants have not filed the Survey report or any response or submissions despite the Court's directions.
The applicant urges that the Defendants have acted as though they are above the law, they have failed to comply with any legal requirement for consultation to construct the subject road and therefore they have no qualms unlawfully and unconstitutionally expropriating the Plaintiffs properties.
The responce
Eng. Silas Kinoti the Chief Executive Officer and Director General of KURA filed a replying affidavit stating that the application for contempt orders is anchored on a false factual premise, in which he believes is misconceived or mischievous in nature. The Court having been seized of the matter heard both parties on the 28th July 2025 in which the court made a determination issuing an injunction order preventing encroachment on the said parcels of Land KILIFl/MTWAPA/71 KILIFI /MTWAPA 476 AND KIIIFI/MTWAPA 477.
The application before the Honourable court having been dated 28th July 2025 had set out allegations that the defendants (including KURA) had entered into the premises, or trespassed into the said plots Kilifl/Mtwapa/71, Kilifl /Mtwapa 476 and Kilifi/Mtwapa 477 which belonged to the plaintiffs. The intrusion was illegal on account of a non-existing road and that the KURA was creating a fictitious road in favour of the neighbour the Speaker of the Senate. That the KURA had no mandate /authority to establish the said road nor powers to oversee the said road as it was beyond statutory and territorial mandate.
The Kenya Urban Roads Authority is mandated under Kenya Roads Act 2007 mandated to maintain, build/ expand roads within towns, municipalities and urban centres. The said access road is within Mtwapa area of Kilifi section that is urban and falls within the mandate of the KURA, the access road is a class B road that is part of the Mtwapa Settlement Scheme just after the Kilïfi weighbridge.
The allegations of creation of a non-existent road is manifestly false as a clear look and read of the Registry index Map for the Mtwapa Settlement scheme shows a road bordering the contentious plots of land KILIFl/MTWAPA/71 KILIFI /MTWAPA 476 AND KIL)FI/MTWAPA 477.
The jurisdiction to hear boundary disputes emanates from the Land Registration Act section 8 and as such the jurisdiction of the court was prematurely invoked by the applicants. The applicants are aware of a survey done with regard to complaints of encroachment noting the various parcels of Lands affected by the construction of the access road.
The applicants were represented by one Mr. David Wahome, who is a co- plaintiff and applicant. KURA was represented by Victor Obiko a Senior Lands Surveyor employed under KURA. The conclusion of the survey was that the allegations of encroachment were manifestly false and to the contrary the converse was true. The findings of the land surveyor were that the parties present adopted the existing road, though not part of the registry index map, this portion of the road is between plot number 3133 and 71. The road bordering plot 71 to the west was to maintain a width of 12 meters as indicated in the registry index map. The road to the west of plot number 62 was to be maintained at 6 metres as in the registry index map.
The report of the surveyor and illustrations thereon show that the boundary walls of plots 71 and 61 as at the time of the survey had largely encroached on the road beyond the boundaries in the registry index map.
According to the deponent, it is the plaintiffs who had encroached on the said access road and the entire suit including the applications are needless, pointless and should be dismissed. The report of the surveyor was released to the parties on the 21st August 2025 hence there was no confusion on whether the construction was an illegality.
The contract for construction is for Kshs 90,842,793.50 and for a duration of 24 months. The project having been stopped awaiting the survey among parties in the month of July 2025, the contractor finished the remainder of the construction that was not part of the said boundary dispute.
Upon completion of the remainder of the road and the survey done with concurrence of all affected parties noting the said boundaries resumed construction, the costs of construction would considerable be inflated had the contractor demobilized to only resume after the suit. The costs of mobilization include the contracting a new labour force and hiring of the machinery on an extended time frame. The costs of demobilization and re-mobilization would be borne by the State needlessly.
The Land Registrars Report dated 19th December 2025 was served upon the Attorney General on the 14th January 2026 occasioning delay in the responses to the various applications. The injunction prevented encroachment unto the parcels of land. The survey report and the subsequent ruling of the Land registrar made a final determination that such encroachment did not happen.
The Land Registrar Mohamed Bullow states that the application for contempt orders misleads the court on the existence of a survey and its attendance in which he believes is mischievous in nature. He instructed the Land Surveyor Kilifi County one Lee Dzoro to undertake a joint survey to demarcate the boundaries of the road in the Mtwapa Settlement scheme in comparison with boundaries of KILIFl/MTWAPA/3133, KILIFI/ MTWAPA 71 and KILIFI/MTWAPA 62.
That, on the 21st August 2025, he presided the meeting before the survey and he personally oversaw the survey. That at the commencement of the survey he confirmed the presence of all affected parties. That all parties were present including one Victor Obiko, surveyor KURA, one David Wahome, applicant herein who was also accompanied by a private surveyor. The report came to findings and conclusions that there was a road between plot 3133 and plot 71 which did not exist on the RIM. That parties present including one David Wahome acceded to maintaining the said road as to the width on the ground. The road bordering plot 62 to the west was set at 6 metres as per the registry index map. The road to the west of plot 71 was set as per registry index map on a width of 12 meters. That on the RIM the subdivision of any of the plots into plot 476 and plot 477 is not indicated.
The methodology in the Survey was use of the registry index map and juxtaposing with the boundary of parcels 71 and 62. The adoption of the road between plot 3133 and plot 71 was done in concurrence by all parties present including one Mr. David Wahome who is a plaintiff in this dispute.
The survey established that the road boundary had been encroached upon by the two parcels of land considerably and even leading to encroachment into other parcels of land notably plots 6714, 6227, 6682, 7224, 6565 and 6864. He issued a ruling dated 19th December 2025 based on the survey of Lee Dzoro. The application for contempt impugns ill motive on all civil servants involved in the attempt to ensure a quick and amicable resolution to the dispute and hence a need for him to swear this affidavit.
The allegations of non-attendance and also lack of consent with adopting an existing makeshift road between plots 3313 and plot 71 are false and that the plaintiff should have provided a contrary survey noting that he also had a surveyor while the exercise was ongoing.
Analysis and Determination.
The issue for determination is whether the defendants have wilfully disobeyed the court order dated 31st July 2025. The import of the court order is that the defendats were restrained from encroaching into the plaintiffs’ parcels of land no KILIF1/MTWAPA/ 71, KILIF1/MTWAPA/476, KILIF1/MTWAPA/477. Contempt of court in Kenya is the willful disobedience of court orders or actions that lower the dignity/authority of the judiciary, actionable under common law and Section 5 of the Judicature Act. It is categorized into civil contempt (violating orders) and criminal contempt (scandalizing the court or interfering with proceedings), punishable by fines or imprisonment. The Standard of Proof is higher than a balance of probabilities, closely approaching beyond reasonable doubt due to the potential loss of liberty. The breach must be deliberate and willful, not merely accidental. Personal service of the order to be enforced is generally required, as reaffirmed in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. However, in some cases knowledge of the order is sufficient.
According to the Black’s Law Dictionary;
“Contempt is a disregard of, disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolvent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body”
In the case of Econet wireless Kenya Limited Vs minister for information & Communication of Kenya & Another, the court stated as follows;
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by the court of competent 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 void.”
Again, in the case of Teachers Service Commission Vs Kenya National Union of Teachers & 2 others (2013) eKLR Ndolo J observed that;
“The reasons why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of Justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding Judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguard the rule of law”
The judge went further to state;
“I am of the same persuasion that the reason why power is vested in courts to punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. The law of contempt has evolved over time in order to maintain the supremacy of the law and the respect for law and the respect for law and order. As it was in the time of Chief Justice Mckean in 1786 so it is today that courts have a duty to ensure that Citizens bend to the law and not vice versa./ Indeed, if respect for law and order never existed, life in society would be but short, brutish and nasty. It is the supremacy of the law and the ultimate administration of justice that is usually under challenge when contempt of court is committed. This is so because, a party who obtains an order from court must be certain that the order will be obeyed by those to whom it is directed. As such, the obedience of a court order is fundamental to the administration of justice and the rule of law. A court order once issued binds all and sundry, the mighty and the lowly equally, without exception. An order is meant to be obeyed and not otherwise.”
The statutory basis of contempt of court in so far as the High court is concerned is section 5 of the Judicature Act. Section 63 (c) of the Civil Procedure Act provides that a disobedience of an order of a temporary injunction will attract punishment in the form of imprisonment or attachment and sale of the contemnor’s property.
Section 5 (l) of the Judicature Act provides as follows;
“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.”
I have carefully considered the application, the replying affidavit and rival submissions and do find that the survey done on 21.8.2025 in the presence of parties and a private surveyor found no road between plot 71 and 313 on the Registry Index Map, however there was a narrower road actually on the ground. The same was not closed but adopted as is. The land Registrar found out that there was encroachment on the access road by both owners of parcels adjoining the road.
It is clear that there was a narrow road between the two parcels of land No. KILIF1/MTWAPA/71 and No. KILIF1/MTWAPA/3313. What is not clear is the size of the road because it does not exist on the RM.
This court further finds that the plaintiff has not discharged his burden of proof by demonstrating that the construction of the road has indeed hived off part of his property contrary to the order of the court because he has not annexed any survey report to the supporting affidavit. The court did not restrain the defendants from constructing the road but from trespassing on the plaintiffs’ parcel of land. The upshot of the above is that the plaintiff application is dismissed with costs.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 24th DAY OF APRIL 2026.
The plaintiffs have come to court vide application dated 8.12.2025 praying for orders this Honourable Court be pleased to find the Defendant's Chief Executive Officer/Director General Eng. Silas Kinoti and the Defendant's director Gabriel Ngigi Kinyanjui in contempt of the orders of the Honourable Court granted on 31st July 2025. They seek orders that 1st Defendant's Chief Executive Officer/Director General Eng. Silas Kinoti and the 2nd Defendant's director Gabriel Ngigi Kinyanjui be arrested and committed to civil jail for a term not exceeding six months. This Honourable Court be pleased to order that the Defendants should not be heard by the Court until they purge the contempt. That the costs of this application be provided for.
The application is based on grounds that the Honourable Justice Stephen Kibunja granted an injunction Order on 31 July, 2025 which barred the Defendants from encroaching into the plaintiffs Properties Plots Nos. KILIF1/MTWAPA/71, KILIF1/MTWAPA/476 and KILIF1/MTWAPA/477 pending the hearing of the Plaintiffs application dated 28th July, 2025.
The Defendants having been duly served with the Plaintiffs application dated 28th July, 2025 attended Court through their Advocates, the Senior Litigation Counsel, Attorney General's office, Mr. Penda who was present when the said Court Orders were issued.
On Friday 5th December, 2025, the Defendants once against entered into trespassed and encroached into the suit properties and resumed the excavations, sand harvesting and road works on the suit properties.
The applicant believes that Mr Amason Kingi, the Honourable Speaker of the Senate who has interest in neighboring Plot KILIFI/MTWAPA/ 400 which has no access road, is the force behind the actions of the Defendants to construct a road through his property by whatever means.
The plaintiffs lament that the Defendants have acted as though they are above the law, they have no legal mandate in the geographical area, they have failed to comply with any legal requirement for public consultation to construct the subject road and therefore they have no qualms unlawfully and unconstitutionally expropriating the Plaintiffs properties. According to the plaintiffs, the defendants are deliberately disobeying and flagrantly breaching the Court Orders to please powerful public officials with impunity, in utter contempt and disdain of the Court Orders.
The application is supported by the affidavit of David Mwangi Wahome the director of the 1st plaintiff who states that the 1st plaintiff is the registered owner of the property no. KILIF1/MTWAPA/71 and KILIF1/MTWAPA/476 whereas the 2nd and 3rd plaintiffs are the administrators of the estate of Anne Gathoni the registered owner of
KILIF1/MTWAPA/477. That Parcels numbers KILIF1/MTWAPA/476 and 477 were subdivided by his late father from KILIF1/MTWAPA/62.
On 26th July 2025, the defendants unlawfully encroached on the suit property and began expansion of a road of access. The plaintiffs obtained an injunction order on the 31st of July 2025pending the hearing of the application dated 28th July 2025. The defendants counsel Mr Penda was present when the order was granted. The court order was served upon the 1st defendant’s officers and the 2nd defendant’s director on 14th August 2025. On the 5th of December 2025, the defendants once again encroached on the said property and resumed excavations in breach of the court order.
On the same day, the Plaintiffs and their Advocate Caroline Katisya informed the 1st Defendant's chief Legal Officer Mr. Peter Bosire of the encroachment and trespass in contempt of the Court Orders and informed the Deputy OCS, Ndonya Police Station of the said encroachment and trespass in contempt of the Court Orders, the Deputy OCS declined to record the report in the occurrence book and further declined to intervene.
On 5th December, 2025, the Deputy OCS, Ndonya Police Station, who had earlier refused 'to be involved, accompanied, protect and assigned 3 police officers to the Defendant's contractors as they breached the Court Orders. The Defendants are deliberately disobeying and flagrantly breaching the Court Orders to please powerful public officials with impunity, in utter contempt and disdain of the Court Orders.
The applicant contends that at every court appearance, the Defendant's Advocate has claimed that they need to undertake a survey to confirm whether they have encroached on the suit properties or not and thereafter they will be able to respond to the Plaintiffs application. The Defendants have not filed the Survey report or any response or submissions despite the Court's directions.
The applicant urges that the Defendants have acted as though they are above the law, they have failed to comply with any legal requirement for consultation to construct the subject road and therefore they have no qualms unlawfully and unconstitutionally expropriating the Plaintiffs properties.
The responce
Eng. Silas Kinoti the Chief Executive Officer and Director General of KURA filed a replying affidavit stating that the application for contempt orders is anchored on a false factual premise, in which he believes is misconceived or mischievous in nature. The Court having been seized of the matter heard both parties on the 28th July 2025 in which the court made a determination issuing an injunction order preventing encroachment on the said parcels of Land KILIFl/MTWAPA/71 KILIFI /MTWAPA 476 AND KIIIFI/MTWAPA 477.
The application before the Honourable court having been dated 28th July 2025 had set out allegations that the defendants (including KURA) had entered into the premises, or trespassed into the said plots Kilifl/Mtwapa/71, Kilifl /Mtwapa 476 and Kilifi/Mtwapa 477 which belonged to the plaintiffs. The intrusion was illegal on account of a non-existing road and that the KURA was creating a fictitious road in favour of the neighbour the Speaker of the Senate. That the KURA had no mandate /authority to establish the said road nor powers to oversee the said road as it was beyond statutory and territorial mandate.
The Kenya Urban Roads Authority is mandated under Kenya Roads Act 2007 mandated to maintain, build/ expand roads within towns, municipalities and urban centres. The said access road is within Mtwapa area of Kilifi section that is urban and falls within the mandate of the KURA, the access road is a class B road that is part of the Mtwapa Settlement Scheme just after the Kilïfi weighbridge.
The allegations of creation of a non-existent road is manifestly false as a clear look and read of the Registry index Map for the Mtwapa Settlement scheme shows a road bordering the contentious plots of land KILIFl/MTWAPA/71 KILIFI /MTWAPA 476 AND KIL)FI/MTWAPA 477.
The jurisdiction to hear boundary disputes emanates from the Land Registration Act section 8 and as such the jurisdiction of the court was prematurely invoked by the applicants. The applicants are aware of a survey done with regard to complaints of encroachment noting the various parcels of Lands affected by the construction of the access road.
The applicants were represented by one Mr. David Wahome, who is a co- plaintiff and applicant. KURA was represented by Victor Obiko a Senior Lands Surveyor employed under KURA. The conclusion of the survey was that the allegations of encroachment were manifestly false and to the contrary the converse was true. The findings of the land surveyor were that the parties present adopted the existing road, though not part of the registry index map, this portion of the road is between plot number 3133 and 71. The road bordering plot 71 to the west was to maintain a width of 12 meters as indicated in the registry index map. The road to the west of plot number 62 was to be maintained at 6 metres as in the registry index map.
The report of the surveyor and illustrations thereon show that the boundary walls of plots 71 and 61 as at the time of the survey had largely encroached on the road beyond the boundaries in the registry index map.
According to the deponent, it is the plaintiffs who had encroached on the said access road and the entire suit including the applications are needless, pointless and should be dismissed. The report of the surveyor was released to the parties on the 21st August 2025 hence there was no confusion on whether the construction was an illegality.
The contract for construction is for Kshs 90,842,793.50 and for a duration of 24 months. The project having been stopped awaiting the survey among parties in the month of July 2025, the contractor finished the remainder of the construction that was not part of the said boundary dispute.
Upon completion of the remainder of the road and the survey done with concurrence of all affected parties noting the said boundaries resumed construction, the costs of construction would considerable be inflated had the contractor demobilized to only resume after the suit. The costs of mobilization include the contracting a new labour force and hiring of the machinery on an extended time frame. The costs of demobilization and re-mobilization would be borne by the State needlessly.
The Land Registrars Report dated 19th December 2025 was served upon the Attorney General on the 14th January 2026 occasioning delay in the responses to the various applications. The injunction prevented encroachment unto the parcels of land. The survey report and the subsequent ruling of the Land registrar made a final determination that such encroachment did not happen.
The Land Registrar Mohamed Bullow states that the application for contempt orders misleads the court on the existence of a survey and its attendance in which he believes is mischievous in nature. He instructed the Land Surveyor Kilifi County one Lee Dzoro to undertake a joint survey to demarcate the boundaries of the road in the Mtwapa Settlement scheme in comparison with boundaries of KILIFl/MTWAPA/3133, KILIFI/ MTWAPA 71 and KILIFI/MTWAPA 62.
That, on the 21st August 2025, he presided the meeting before the survey and he personally oversaw the survey. That at the commencement of the survey he confirmed the presence of all affected parties. That all parties were present including one Victor Obiko, surveyor KURA, one David Wahome, applicant herein who was also accompanied by a private surveyor. The report came to findings and conclusions that there was a road between plot 3133 and plot 71 which did not exist on the RIM. That parties present including one David Wahome acceded to maintaining the said road as to the width on the ground. The road bordering plot 62 to the west was set at 6 metres as per the registry index map. The road to the west of plot 71 was set as per registry index map on a width of 12 meters. That on the RIM the subdivision of any of the plots into plot 476 and plot 477 is not indicated.
The methodology in the Survey was use of the registry index map and juxtaposing with the boundary of parcels 71 and 62. The adoption of the road between plot 3133 and plot 71 was done in concurrence by all parties present including one Mr. David Wahome who is a plaintiff in this dispute.
The survey established that the road boundary had been encroached upon by the two parcels of land considerably and even leading to encroachment into other parcels of land notably plots 6714, 6227, 6682, 7224, 6565 and 6864. He issued a ruling dated 19th December 2025 based on the survey of Lee Dzoro. The application for contempt impugns ill motive on all civil servants involved in the attempt to ensure a quick and amicable resolution to the dispute and hence a need for him to swear this affidavit.
The allegations of non-attendance and also lack of consent with adopting an existing makeshift road between plots 3313 and plot 71 are false and that the plaintiff should have provided a contrary survey noting that he also had a surveyor while the exercise was ongoing.
Analysis and Determination.
The issue for determination is whether the defendants have wilfully disobeyed the court order dated 31st July 2025. The import of the court order is that the defendats were restrained from encroaching into the plaintiffs’ parcels of land no KILIF1/MTWAPA/ 71, KILIF1/MTWAPA/476, KILIF1/MTWAPA/477. Contempt of court in Kenya is the willful disobedience of court orders or actions that lower the dignity/authority of the judiciary, actionable under common law and Section 5 of the Judicature Act. It is categorized into civil contempt (violating orders) and criminal contempt (scandalizing the court or interfering with proceedings), punishable by fines or imprisonment. The Standard of Proof is higher than a balance of probabilities, closely approaching beyond reasonable doubt due to the potential loss of liberty. The breach must be deliberate and willful, not merely accidental. Personal service of the order to be enforced is generally required, as reaffirmed in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. However, in some cases knowledge of the order is sufficient.
According to the Black’s Law Dictionary;
“Contempt is a disregard of, disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolvent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body”
In the case of Econet wireless Kenya Limited Vs minister for information & Communication of Kenya & Another, the court stated as follows;
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect of whom, an order is made by the court of competent 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 void.”
Again, in the case of Teachers Service Commission Vs Kenya National Union of Teachers & 2 others (2013) eKLR Ndolo J observed that;
“The reasons why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of Justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding Judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguard the rule of law”
The judge went further to state;
“I am of the same persuasion that the reason why power is vested in courts to punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. The law of contempt has evolved over time in order to maintain the supremacy of the law and the respect for law and the respect for law and order. As it was in the time of Chief Justice Mckean in 1786 so it is today that courts have a duty to ensure that Citizens bend to the law and not vice versa./ Indeed, if respect for law and order never existed, life in society would be but short, brutish and nasty. It is the supremacy of the law and the ultimate administration of justice that is usually under challenge when contempt of court is committed. This is so because, a party who obtains an order from court must be certain that the order will be obeyed by those to whom it is directed. As such, the obedience of a court order is fundamental to the administration of justice and the rule of law. A court order once issued binds all and sundry, the mighty and the lowly equally, without exception. An order is meant to be obeyed and not otherwise.”
The statutory basis of contempt of court in so far as the High court is concerned is section 5 of the Judicature Act. Section 63 (c) of the Civil Procedure Act provides that a disobedience of an order of a temporary injunction will attract punishment in the form of imprisonment or attachment and sale of the contemnor’s property.
Section 5 (l) of the Judicature Act provides as follows;
“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.”
I have carefully considered the application, the replying affidavit and rival submissions and do find that the survey done on 21.8.2025 in the presence of parties and a private surveyor found no road between plot 71 and 313 on the Registry Index Map, however there was a narrower road actually on the ground. The same was not closed but adopted as is. The land Registrar found out that there was encroachment on the access road by both owners of parcels adjoining the road.
It is clear that there was a narrow road between the two parcels of land No. KILIF1/MTWAPA/71 and No. KILIF1/MTWAPA/3313. What is not clear is the size of the road because it does not exist on the RM.
This court further finds that the plaintiff has not discharged his burden of proof by demonstrating that the construction of the road has indeed hived off part of his property contrary to the order of the court because he has not annexed any survey report to the supporting affidavit. The court did not restrain the defendants from constructing the road but from trespassing on the plaintiffs’ parcel of land. The upshot of the above is that the plaintiff application is dismissed with costs.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 24th DAY OF APRIL 2026.