Introduction
The 4th defendant, Moses Owino trading as Mosem Enterprises has come to this court with an application dated 10th April 2025 seeking orders that the Honorable Court makes a finding that the 2nd Respondents are in contempt of court on account of deliberate failure and/or refusal to comply with the orders made by the Honorable Court on 2nd May 2024. That summons do issue to the Vice Chancellor Egerton University Isaac Kewage and OCS Njoro Police Station to personally appear in court and show cause why he should not be committed to civil jail for contempt of court for a period of six months.
The Court be pleased to issue injunction orders restraining the Respondents their servants, agents and/or any person from whomsoever working on their instructions from harassing confiscating applicants property, interfering with the applicants activities, trespassing into, leasing and/or carrying out contrary activities of whatever nature on land parcel number I-RE NO. 527 and LR NO. 528 Njoro till this application and suit is heard inter-parties pursuant to orders issued on 2nd May 2024. The officer commanding Njoro Police Station do enforce compliance of the Honorable Court Orders. Costs be provided for.
The application is supported by the affidavit of Moses Owino wherein he states that That the 2nd respondents have issued instructions to the OCS Njoro to harrass and arrest the applicants and have further confiscated their tractors. That the 2nd respondents have further started leasing the property to private citizens in utter contempt of the court orders. That the applicants are worried and anxious due to the loss and damage incurred. That it is in the interest of justice that the orders sought are granted as prayed. The honorable Court issued orders on 2nd May 2024 preserving the status quo of the suit property. The 2nd respondent has issued instructions to the OCS Njoro to harrass and arrest the applicants and have further confiscated their tractors
The 2nd respondent has further started leasing the property to private citizens in utter contempt of the court orders. The applicants are worried and anxious due to the loss and damage incurred. It is in the interest of justice that the orders sought are granted as prayed.
Response
Prof Richard Mulwa filed a replying affidavit stating that he was the Deputy Vice Chancellor Administration & Finance & Planning of the 2nd Respondent. He further stated that the application was incompetent and an abuse of the court process. He also stated that the application was an attempt to scuttle the upcoming substantive hearing of the matter which the Applicant was uncomfortable would expose his mischief around the whole land saga yet at the same time continue to disrupt the legitimate commercial activities of the suit parcels. He stated that on the 17th December, 2024, the honorable court visited the two suit parcels and, the only activities that were on going on the parcels were the agricultural activities by the 2nd Plaintiff as part of its academic research and commercial activities.
He further stated that neither on the said date or any time prior or subsequent has there been cognizable activities by the Defendant or for that matter the Applicant apart from repeated attempted incursions to the parcel by his hirelings who had allegedly fraudulently collected money with the false promise that he would obtain the land for them.
He stated that the site visit established that the suit parcels were in the 2nd Plaintiff’s possession and none of the Defendants were in occupation. He added that the Applicant through his said proxies have been trying to alter the status quo. He stated that this was done by hiring a tractor to plough the parcel and claim that it was the existing status quo.
He stated that the Applicant reported the matters to Njoro Police station where the first incident was under OB No. 36/7/4125. He added that on 9th April, 2025, the tractor was again spotted trying to access the 2nd Plaintiff’s farm and the matter was reported at the same station and recorded as OB No 819/4/25 and owner of the tractor was arrested and was currently awaiting arraignment in court.
He stated that the Defendants again on 14th April, 2025 invaded the farm and injured, one Mr Stephen Mwangi a tractor driver who was ploughing the farm under the 2nd Plaintiff’s instruction. He further stated that there were subsequent concerted efforts by the Defendants to disrupt the processes and activities of the 2nd Plaintiff on19th April 2025 and 21st April 2025 respectively.
He stated that the instant application was supported by a scanty affidavit that could not establish contempt of court by the alleged contemnor. He further stated that the application should be stuck out to pave way for the hearing and determination of the suit.
Submissions
Counsel for the Applicant filed his submissions dated 24th June, 2025 where he identified one issue for determination being whether the application dated 10th April, 2025 should be allowed as prayed with costs borne by the 2nd Plaintiff. It was his submission that on 2nd May, 2024 and 16th December, 2024 the court issued status quo orders in relation to the suit properties pending hearing and determination of the main suit. He submits that 2nd Plaintiff in breach of the said orders instructed police officers to harass and arrest the Applicants and their agents who resided on the suit properties. He submits that the said acts amounted to blatant disregard of the court’s orders and have since occasioned the Applicant loss and damage.
Counsel relied on the case of Teachers Service Commission V Kenya National Union of Teachers & 2 Others [2013] eKLR. He submits that the status quo orders were duly issued and served upon the 2nd Plaintiff who was fully aware of the same but has deliberately violated them. He submits that the Applicant has established a strong case that the 2nd Plaintiff was in violation of the status quo orders. He cited the case in Gehlot & Another V SK Sports and Recreational Limited t/a Momentum Fitness & 2 Others (Commercial Case E118 of 2024) [2025] KEHC 1132 (KLR) and urges the court to summon the Vice Chancellor of the 2nd Plaintiff to show cause why he should not be held for contempt.
In conclusion, he urged the court to allow the application as prayed.
Counsel for the 2nd Plaintiff filed his submissions dated 23rd June, 2025 where he identified two issues for identification. The first issue was whether the 4th Defendant/Applicant’s application dated 10th April, 2025 is merited. While submitting in the negative, he submits that the prayers for contempt was an abuse of the court process. He relied on the case of Kioni & 3 Others V National Disciplinary Committee of the Jubilee Party & 2 Others; Chege (Contemnor) Civil Appeal E630 of 2023) [2024] KEHC 11441 (KLR). He submits that the 2nd Plaintiff/Respondent has not engaged in any willful attempt to disobey court orders. He instead argues that the 4th Defendant/Applicant was the one who has since disobeyed the court orders and frustrated the commercial activities of the 2nd Plaintiff.
He submits that the 4th Defendant’s activities through his proxies have allegedly collected monies with the false promise that he would give them the suit properties. He further submits that the 4th Defendant/Applicant failed to set a basis to ground his prayer for grant of injunction orders. He relied on the cases of East African Industries V Trufoods [1972] EA 420 and Giella V Cassman Brown & Co. Ltd [1973] EA 358.
He submits that the 4th Defendant failed to satisfy the requirement of a prima facie case since it was established from the site visit on 17th December, 2024 that the suit parcels were in the 2nd Plaintiff’s possession and none of the Defendants/Applicants were in occupation of the same. He relied on the case of Nguruman Limited V Nielsen & Another (Civil Appeal 20 of 2018) [2023] KECA 274 (KLR) and submits that the 4th Defendant did not have any property or crops growing on the suit parcels and therefore did not stand to suffer any loss if the court failed to grant the injunctive reliefs sought. He also submits that the balance of convenience lies in favour of the Plaintiff. He relied on the case of Margaret Njambi Kamau V John Mwatha Kamau & another [2019] eKLR and argues that the potential harm to the 2nd Plaintiff superseded any harm that may be suffered by the Defendant/Applicant if the injunction is granted.
It was counsel’s submission that the 4th Defendant’s conduct did not meet the approval of the edicts and principles of equity. He cited the case of Caliph Properties Limited V Barbel Sharma & Another [2015] eKLR and argues that the 4th Defendant/Applicant cannot seek to avail himself of the equitable injunctive reliefs sought as he is guilty of material non-disclosure related to the facts of the case.
On the final issue of costs, it was his submission that having proven that the present application lacked merit, costs should be awarded to the 2nd Plaintiff/Respondent.
Analysis and Determination
After considering the pleadings of the Applicant and the intended contemnors, the following issues arise for determination:
a) Whether the Applicants are entitled to the prayers sought in the Notice of Motion Application dated 10th April, 2025.
b) Who should pay the costs of this Application.
Section 29 of the Environment and Land Court provides that;
“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both”
In the case of North Tetu Farmers Co. Ltd V Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo stated as follows: ' writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-
“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 - (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.”
A claim on contempt of court is a grave issue that the court treats with a lot of seriousness as it goes to the core of undermining the authority of the court. It is a fundamental principle of law that court orders are meant to be obeyed to the letter as they are not issued in vain. Failure to obey court orders would then result in contempt of court.
It is an established principle of law that in order to succeed in civil contempt proceedings, the Applicant has to prove the four conditions as stated above.
It is not in dispute that this court on 2nd May, 2024 ordered that the status quo of the suit properties be maintained pending hearing and determination of the suit. It is also not in contention that on 17th December, 2024 this court conducted a site visit where it established that the 2nd Respondent was in occupation of the suit properties.
The 4th Defendant/Applicant contends that the 2nd Plaintiff/Respondent ought to be held in contempt by virtue of them using police officers to harass and intimidate them to leave the suit properties.
I have however perused the supporting affidavit and I do find that there is no evidence of an invasion to the suit property by the 2nd Plaintiff/Respondent on the suit property as alleged by the 4th Defendant/Applicant. I am of the view that with the unavailability of documentary evidence of the alleged acts of breach, this court does not have the basis from which it can base its finding of contempt. Consequently, the temporary injunction orders sought cannot issue in the circumstance. The upshot is that the application dated 10th April, 2025 is hereby dismissed with costs in the cause. Orders accordingly.
The 4th defendant, Moses Owino trading as Mosem Enterprises has come to this court with an application dated 10th April 2025 seeking orders that the Honorable Court makes a finding that the 2nd Respondents are in contempt of court on account of deliberate failure and/or refusal to comply with the orders made by the Honorable Court on 2nd May 2024. That summons do issue to the Vice Chancellor Egerton University Isaac Kewage and OCS Njoro Police Station to personally appear in court and show cause why he should not be committed to civil jail for contempt of court for a period of six months.
The Court be pleased to issue injunction orders restraining the Respondents their servants, agents and/or any person from whomsoever working on their instructions from harassing confiscating applicants property, interfering with the applicants activities, trespassing into, leasing and/or carrying out contrary activities of whatever nature on land parcel number I-RE NO. 527 and LR NO. 528 Njoro till this application and suit is heard inter-parties pursuant to orders issued on 2nd May 2024. The officer commanding Njoro Police Station do enforce compliance of the Honorable Court Orders. Costs be provided for.
The application is supported by the affidavit of Moses Owino wherein he states that That the 2nd respondents have issued instructions to the OCS Njoro to harrass and arrest the applicants and have further confiscated their tractors. That the 2nd respondents have further started leasing the property to private citizens in utter contempt of the court orders. That the applicants are worried and anxious due to the loss and damage incurred. That it is in the interest of justice that the orders sought are granted as prayed. The honorable Court issued orders on 2nd May 2024 preserving the status quo of the suit property. The 2nd respondent has issued instructions to the OCS Njoro to harrass and arrest the applicants and have further confiscated their tractors
The 2nd respondent has further started leasing the property to private citizens in utter contempt of the court orders. The applicants are worried and anxious due to the loss and damage incurred. It is in the interest of justice that the orders sought are granted as prayed.
Response
Prof Richard Mulwa filed a replying affidavit stating that he was the Deputy Vice Chancellor Administration & Finance & Planning of the 2nd Respondent. He further stated that the application was incompetent and an abuse of the court process. He also stated that the application was an attempt to scuttle the upcoming substantive hearing of the matter which the Applicant was uncomfortable would expose his mischief around the whole land saga yet at the same time continue to disrupt the legitimate commercial activities of the suit parcels. He stated that on the 17th December, 2024, the honorable court visited the two suit parcels and, the only activities that were on going on the parcels were the agricultural activities by the 2nd Plaintiff as part of its academic research and commercial activities.
He further stated that neither on the said date or any time prior or subsequent has there been cognizable activities by the Defendant or for that matter the Applicant apart from repeated attempted incursions to the parcel by his hirelings who had allegedly fraudulently collected money with the false promise that he would obtain the land for them.
He stated that the site visit established that the suit parcels were in the 2nd Plaintiff’s possession and none of the Defendants were in occupation. He added that the Applicant through his said proxies have been trying to alter the status quo. He stated that this was done by hiring a tractor to plough the parcel and claim that it was the existing status quo.
He stated that the Applicant reported the matters to Njoro Police station where the first incident was under OB No. 36/7/4125. He added that on 9th April, 2025, the tractor was again spotted trying to access the 2nd Plaintiff’s farm and the matter was reported at the same station and recorded as OB No 819/4/25 and owner of the tractor was arrested and was currently awaiting arraignment in court.
He stated that the Defendants again on 14th April, 2025 invaded the farm and injured, one Mr Stephen Mwangi a tractor driver who was ploughing the farm under the 2nd Plaintiff’s instruction. He further stated that there were subsequent concerted efforts by the Defendants to disrupt the processes and activities of the 2nd Plaintiff on19th April 2025 and 21st April 2025 respectively.
He stated that the instant application was supported by a scanty affidavit that could not establish contempt of court by the alleged contemnor. He further stated that the application should be stuck out to pave way for the hearing and determination of the suit.
Submissions
Counsel for the Applicant filed his submissions dated 24th June, 2025 where he identified one issue for determination being whether the application dated 10th April, 2025 should be allowed as prayed with costs borne by the 2nd Plaintiff. It was his submission that on 2nd May, 2024 and 16th December, 2024 the court issued status quo orders in relation to the suit properties pending hearing and determination of the main suit. He submits that 2nd Plaintiff in breach of the said orders instructed police officers to harass and arrest the Applicants and their agents who resided on the suit properties. He submits that the said acts amounted to blatant disregard of the court’s orders and have since occasioned the Applicant loss and damage.
Counsel relied on the case of Teachers Service Commission V Kenya National Union of Teachers & 2 Others [2013] eKLR. He submits that the status quo orders were duly issued and served upon the 2nd Plaintiff who was fully aware of the same but has deliberately violated them. He submits that the Applicant has established a strong case that the 2nd Plaintiff was in violation of the status quo orders. He cited the case in Gehlot & Another V SK Sports and Recreational Limited t/a Momentum Fitness & 2 Others (Commercial Case E118 of 2024) [2025] KEHC 1132 (KLR) and urges the court to summon the Vice Chancellor of the 2nd Plaintiff to show cause why he should not be held for contempt.
In conclusion, he urged the court to allow the application as prayed.
Counsel for the 2nd Plaintiff filed his submissions dated 23rd June, 2025 where he identified two issues for identification. The first issue was whether the 4th Defendant/Applicant’s application dated 10th April, 2025 is merited. While submitting in the negative, he submits that the prayers for contempt was an abuse of the court process. He relied on the case of Kioni & 3 Others V National Disciplinary Committee of the Jubilee Party & 2 Others; Chege (Contemnor) Civil Appeal E630 of 2023) [2024] KEHC 11441 (KLR). He submits that the 2nd Plaintiff/Respondent has not engaged in any willful attempt to disobey court orders. He instead argues that the 4th Defendant/Applicant was the one who has since disobeyed the court orders and frustrated the commercial activities of the 2nd Plaintiff.
He submits that the 4th Defendant’s activities through his proxies have allegedly collected monies with the false promise that he would give them the suit properties. He further submits that the 4th Defendant/Applicant failed to set a basis to ground his prayer for grant of injunction orders. He relied on the cases of East African Industries V Trufoods [1972] EA 420 and Giella V Cassman Brown & Co. Ltd [1973] EA 358.
He submits that the 4th Defendant failed to satisfy the requirement of a prima facie case since it was established from the site visit on 17th December, 2024 that the suit parcels were in the 2nd Plaintiff’s possession and none of the Defendants/Applicants were in occupation of the same. He relied on the case of Nguruman Limited V Nielsen & Another (Civil Appeal 20 of 2018) [2023] KECA 274 (KLR) and submits that the 4th Defendant did not have any property or crops growing on the suit parcels and therefore did not stand to suffer any loss if the court failed to grant the injunctive reliefs sought. He also submits that the balance of convenience lies in favour of the Plaintiff. He relied on the case of Margaret Njambi Kamau V John Mwatha Kamau & another [2019] eKLR and argues that the potential harm to the 2nd Plaintiff superseded any harm that may be suffered by the Defendant/Applicant if the injunction is granted.
It was counsel’s submission that the 4th Defendant’s conduct did not meet the approval of the edicts and principles of equity. He cited the case of Caliph Properties Limited V Barbel Sharma & Another [2015] eKLR and argues that the 4th Defendant/Applicant cannot seek to avail himself of the equitable injunctive reliefs sought as he is guilty of material non-disclosure related to the facts of the case.
On the final issue of costs, it was his submission that having proven that the present application lacked merit, costs should be awarded to the 2nd Plaintiff/Respondent.
Analysis and Determination
After considering the pleadings of the Applicant and the intended contemnors, the following issues arise for determination:
a) Whether the Applicants are entitled to the prayers sought in the Notice of Motion Application dated 10th April, 2025.
b) Who should pay the costs of this Application.
Section 29 of the Environment and Land Court provides that;
“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both”
In the case of North Tetu Farmers Co. Ltd V Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo stated as follows: ' writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-
“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 - (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.”
A claim on contempt of court is a grave issue that the court treats with a lot of seriousness as it goes to the core of undermining the authority of the court. It is a fundamental principle of law that court orders are meant to be obeyed to the letter as they are not issued in vain. Failure to obey court orders would then result in contempt of court.
It is an established principle of law that in order to succeed in civil contempt proceedings, the Applicant has to prove the four conditions as stated above.
It is not in dispute that this court on 2nd May, 2024 ordered that the status quo of the suit properties be maintained pending hearing and determination of the suit. It is also not in contention that on 17th December, 2024 this court conducted a site visit where it established that the 2nd Respondent was in occupation of the suit properties.
The 4th Defendant/Applicant contends that the 2nd Plaintiff/Respondent ought to be held in contempt by virtue of them using police officers to harass and intimidate them to leave the suit properties.
I have however perused the supporting affidavit and I do find that there is no evidence of an invasion to the suit property by the 2nd Plaintiff/Respondent on the suit property as alleged by the 4th Defendant/Applicant. I am of the view that with the unavailability of documentary evidence of the alleged acts of breach, this court does not have the basis from which it can base its finding of contempt. Consequently, the temporary injunction orders sought cannot issue in the circumstance. The upshot is that the application dated 10th April, 2025 is hereby dismissed with costs in the cause. Orders accordingly.