The 1st respondent, Fort Properties Ltd has come to this court seeking orders that the OCS Kiembeni Police Station Mr. Elvis Juma be cited for contempt of this honourable Court's Order dated 24th March 2026 and thus be arrested and brought before this Court for punishment under the law and/or in the alternative the Officer Commanding Police Division Kisauni sub-county be compelled to provide security to the property immediately pursuant to this Court's Order of 24th March 2026 and that the Officer Commanding Police Division Kisauni sub-county to ensure compliance of the arrest of the OCS Kiembeni. That in the alternative, OCS Kiembeni Mr. Elvis Juma and National Police Service be compelled to compensate the 1st Respondent of the losses suffered. Lastly, that the cost be provided for.
The application is supported by the Affidavit of Yunus Haron who reiterates the grounds of the application. The applicant states in the grounds of the application that the property is and has always been vacant and that there was an order issued dated 12th March 2025 by the court stopping the Petitioners, agents, servants and/or employees from trespassing onto the land. That the Petitioners had largely obeyed the order until 23rd February 2026 when hearing of the case began. That after the first witness testified, it became apparent to the Petitioners that the suit was dead on arrival. This was confirmed when the second witness testified and was put to the sword. That immediately, unknown persons of the Petitioner started constructing small structures, creating roads and generally invaded the property with an aim and intention of deceiving this Court that they are occupying the property yet the Court had already visited and reported that the property is vacant as 23rd August 2024. That on the 24th of March 2026 an order was issued to compel the OCS Kiembeni Mr.Elvis Juma to provide security to ensure that the Order dated 12th March 2025 is obeyed. The order was served on the 27th of March 2026 and the entire chain of police command from the OCS Kiembeni to the Inspector General of Police. That no action was taken against the petitioners, agents, servants and/or employees while the Police silently stood watch on the trespass and invasion by the squatters and petitioners, despite reports being made to the Kiembeni Police Station, they still refused to provide security and obey the Court Order. That with the situation worsening, the 1st Respondent wrote a letter to the police hierarchy dated 10th April 2026 warning them of contempt proceedings but that too fell on deaf ears. That it is up to the court to protect its dignity.
The application is supported by the affidavit of Yunus Harun, the director of the 1st defendant. He states that there was an order issued dated 12th March 2025 by the court stopping the Petitioners agents, servants and/or employees from trespassing onto the land. The Petitioners had largely obeyed the order until 23rd February 2026 when hearing of the case began. That already the 1st Respondent has suffered losses and continues to suffer losses while they are obeying Court Order.
Mr Etore John Akaran filed a replying affidavit whose import is that one Yunus Haroon is not a Director of the 1st Respondent, Fort Properties Limited and has deliberately engaged in acts of perjury, and deponed to facts in a ploy to mislead the Honourable Court to presume that indeed the said affidavit was sworn by a member of the Board of the 1st Respondent.
He contends that the affidavit sworn on the 17th April 2026 contains falsified evidence on oath attracting the dismissal penalty, which then causes the effect that the application dated the 17th day of April 2026 cannot stand on its own and ought to suffer the consequence of being struck out with cost. That all consequent averments pertinent to the application especially of such serious nature of quasi environment in nature such as contempt that contain falsehoods cannot be utilized in applications of such nature. He further states that his Co-Petitioners /Respondents and himself are law abiding citizens of the Republic of Kenya have tremendous respect for the Honourable court and the Rule of law.
The Application dated the 17th day April 2026, and the affidavit therewith carry allegations, insinuations figment of imagination and or averment that all that property subject to this Petition has been invaded which is false similar to the perjury fronted by the Respondent the in Court proceedings and in documentation and pleadings before the Honourable Court. That to throw around heavy allegations against the Petitioners /Respondents insinuating an alleged invasion has the consequence of exerting pressure upon the Honourable court to convict the Co-Petitioners/Respondents. That a ground report in the premise of any investigations and 8th respondent clearly removes any guilt on the part of his Co-Petitioners/Respondents.
The sole objective is an eviction order which the Honourable Court cannot issue against persons who are unidentified as squatters these are not parties to the present suit, and are non-suited.
According to the respondents, the jurisdiction of contempt proceedings can only issue against individual who are parties to the present petition the information being peddled of placing blame on the Petitioners/Respondents and so as to get eviction orders is contrary to the rule of law, legitimate expectation and more importantly it is clearly trying to gain an upper hand in a matter pending judgment. That it is immediately upon the close of Petitioners /Respondent case that a flurry of applications in the nature and realm of contempt have been filed.
The petitioners state that there is no superiority contest before the Honourable court, the Petition before the Honourable court cannot be used as a settle-scores. The 8th Respondent/Respondent being a litigant in the present proceedings ought to be granted audience, the scenario of contempt flies straight as against the said Respondent who in fact ought to be investigated for falsehoods.
.
Yunis Harun filed a further affidavit stating that he is the Property Manager and they made several reports to the Police about the Invasion and that the officer had refused to take action and to vacate the invaders or forcible detention which is the crime committed and that at present there are only 6 structures on the premises and not hundreds as alleged. They only want protection from the invaders and that as long as the Police keep off they stand to lose.
According to the 1st respondent, no effort was communicated to the 1st respondent either verbally or officially of the construction despite their several visits and letters to the entire Police Administration. That no reason has been given for not obeying the Court Order to provide security. That the laxity and inaction of the OCS put the Court as inadequate and illegitimate because nothing has been averred to uphold the dignity of the Court.
The applicant states that the Affidavit demonstrates a defiant attitude by the Officer yet no action has been taken or even a Police report has not been indicated.
Elvis Juma OCS, Kiembeni Police Station and No. 23645 filed a replying affidavit stating that he is a Police Officer within the meaning of the National Police Service Act No IA of 2011 (revised 2012) Laws of Kenya and the office bearer of the 8th Respondent. 2. He states that he was posted at Kiembeni Police Station on 28.01.2025, There was a Court Order dated 12.03.2025, which order, granted injunction against the Petitioners, agents, servants, employees and/or constructors from invading, trespassing, constructing, breaking and destroying the perimeter wall and interfering with the peaceful enjoyment of the property pending hearing and determination of the Petition herein. The said order was obeyed until most recently, in or about the month o of February 2026. It is important for this Honourable Court to note that the said Order had no direct directions to his office to provide security at that time. The crux of the Application herein stems from an Order from this Honourable Court dated 24.03.2026 which was received in his office on 27.03.2026.
That the said Order granted an injunction against the Petitioners, restraining them from invading, trespassing, breaking and destroying the perimeter fence of the suit property. The said Order further directed his office to provide security to ensure that the Court's orders are obeyed.
That by the time the Order dated 24.03.2026 was served upon him, squatters had already invaded the suit land and constructed structures in it, The order dated 24.03.2026, requires his office to provide security to prevent trespassers, yet the trespassers were already in the suit property, way before the Order was issued.
To avoid stirring hostility from the already enraged squatters, his office sought for reinforcement to remove the squatters who were already dwelling in the suit property. The said squatters are in their hundreds thus overwhelmingly outnumbering officers under his command. The process of getting reinforcement is still underway.
That according to their records, the said squatters had encroached the suit property since February 2026, which is a month before the issuance of the Order dated 24.03-2026 by this Honourable Court. Unless an eviction order is now issued by this Honourable Court to evict the squatters who trespassed after February 2026, it would be difficult to effect the Order dated 24.03.2026.
That there is a man power challenge in the office since the squatters who invaded the suit property are large in number. There is dire need to seek a further order of reinforcement, especially at night, which is when the squatters tend to invade and trespass on the suit property. That in as much as the 1st Respondent has made complaints at the Police Station no arrests have been made as yet as the complainant and witnesses are yet to record their statement and investigations are still on going.
The prayers sought by the Applicant, and especially prayers 2 and 5 on the face of the Notice of Motion, are of serious nature, yet the Applicant has not demonstrated to this Honourable Court how he willfully failed, refused and or neglected to obey the Court Order dated 24.03.2026. As a matter of fact, it is the Petitioners who are in contempt as they are the ones who disobeyed the Honourable Court Orders. They proceeded to trespass onto the suit land deliberately knowing there exists an injunction order barring them from doing so.
He recommends that this Honourable Court gives direct orders of eviction and demolition of structures built by the squatters who invaded and constructed structures in or about February 2026 as they are the ones who disobeyed both Court orders dated 12,03.2025 and 24.03.2026. The petitioners argue that the Court Order dated 24.03.2026 was vaque and or ambiguous to the extent that the 8th Respondent could not enforce the Order. As stated in the 8th Respondent's sworn Affidavit dated 21.04.2026, there was a Court Order dated 12.03.2025, which order, granted injunction against the Petitioners, agents, servants, employees and/or constructors from invading, trespassing, constructing, breaking and destroying the perimeter wall and interfering with the peaceful enjoyment of the property pending hearing and determination of the Petition herein. The said order was obeyed until most recently, in or about the month of February 2026. The said Order had not directed the 8th Respondent to provide security at the time it was issued. Regarding the Order in question dated 24.03.2026, the same granted an injunction against the Petitioners, restraining them from invading, trespassing, breaking and destroying the perimeter fence of the suit property. Further, —there was a directive for the 8th Respondent to provide security to ensure that the Court's orders are obeyed.
The petitioners submit that the Court Order dated 24.03.2026 was served upon the 8 th respondent on 27.03.2026, as seen in the 8th Respondent's Replying Affidavit the said Order was served way after squatters/Petitioners had trespassed onto the suit land and built structures therein. Thus, while the Order specifically directed provision of security and not demolition of structures it would be impossible to effect the same since it is ambiguous. The police are a creature of command, acting on directives from statute or any authority, in this case a Court 0rder. Thus, that the 8th Respondent cannot formulate its own directive and act on it or enforce it.
The petitiners rely on the case of Katsuri Limited =VS= Kapurch and Depark Shah [2016)1 KEHC 6447 (KLR); where the Learned Judge opined as follows on clarity of Orders:-
“.. As pointed out earlier, in an application of this nature we are dealing with the liberty of a person and such an order ought to be granted in the dearest circumstances as evidently demonstrated by the authorities cited herein. In the instant application / am not satisfied that that standard of proof has been attained... "
From the foregoing petitioner submits that the Court Order dated 24.03.2026 is vague, ambiguous and may be interpreted to mean something other than what it was intended to mean. The petitioner submits that from the 8th Respondent's point of view, the Applicant expected the 8th Respondent to evict the squatters/Petitioners and demolish the structures on the suit property; whilst, the Court Order only meant provision of security of the suit property.
On whether the alleged contemnor willfully and in bad faith intentionally disobeyed the Court Order dated 24.03.2026, the petioner contends that Elvis Juma stated that the squatters had begun encroaching the suit property as from in or about February 2026, which was a month before the issuance of the Order dated 24.03.2026 by this Honourable Court. They were in large numbers and the manpower at the 8th Respondent's office is not sufficient to ward off the squatters/Petitioners who usually trespassed onto the suit property at night. The 8 th Respondent did not willfully refuse to obey the Court Order dated 24.03.2026. The 8th Respondent was acting in good faith and even went to the extent of obtaining reinforcement which is a process that usually takes time as the 8th Respondent follows —a chain of command. The 8 th Respondent serves the entire Kiembeni area, wherein the —suit property is situated. The petitioner submits that his action or inaction was in good faith for the benefit of the citizenry he is serving not just the Applicant.
The allegations of laxity, inaction or defiant attitude by the 8th Respondent, as contained in the Applicant's Further Affidavit dated 24.04.2026 are misleading as the annexures show the reports were made in the years 2024 and 2025. This was before issuance of the Court Order dated 24.03.2026 and that the complaints reported are still under active investigation. No arrests have been made as yet as the complainant and witnesses are yet to record their statements.
The petitioners refer to the case of Samuel M. N. Mweru & Others =Vs= National Land Commission & 2 Others [20201 KEHC 9233(KLR); where the Learned Judge stated as follows on the subject .
“38. The test for when disobedience of a civil order constitutes contempt has come
.to be stated as whether the breach was committed 'deliberately and mala fide. ' A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). 39. These requirements — that is the refusal to obey should be both wilful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt — accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court's dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent...”
Contempt proceedings are quasi-criminal in nature and carry the drastic consequence of imprisonment and fines. The Applicant must satisfy all the requisite elements and prove them beyond reasonable doubt, failure to which, the Application must be dismissed with costs.
I have considered the application, evidence and all submissions on record and do observe that it is trite that Courts punish for contempt to safeguard the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts: In the cases of Sheila Cassatt Issenberg & Another v Antony Machatha Kinyanjui [2021] eklr , the court cited with approval the decision of the Supreme Court of India in Mahinderjit Singh Bitta v Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011), where it was stated that:“In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the order of the court, even to constitute a civil contempt. Every party who before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.”
In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the court as follows:
“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.”
Moreover, in the above case of Samuel M. N. Mweru Case (Supra), the court set down the test for contempt as follows:
“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to proved;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 [47] 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; andd.The defendant's conduct was deliberate.”
In the case of Ochino & another v Okhombo & others (1989) KLR, the court held that as a general rule, no court order requiring a person to do or abstain from doing any act may be enforced by committing him for contempt, unless a copy of the order has been served personally on the person required to do or abstain from doing it.
Further, in the case of Duncan Mamel Murigi v Kenya Railway Corporation (2008) eKLR the court while citing the case of Re Bramblevale Ltd (1970) CH 128, held that contempt of court is an offense of a criminal nature, and that a man may be sent to prison for it once it is proved that when the man was asked about it, he told lies and that there should be further evidence to incriminate him.
Contempt of court being quasi- criminal proceedings, in nature, therefore the degree of proof is high. See the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & another C.A No. 24 of 2014, where the court held that a court must satisfy itself beyond any shadow of a doubt that the person alleged to be in contempt committed the acts complained of with full knowledge or notice of the existence of the order of the court, forbidding it since the threshold involves possible deprivation of a person’s liberty.
Given that contempt of court proceedings is quasi-criminal in nature, and that the liberty of the citees is at stake, then the degree of proof must be in the required standard. See the case of Gatharia K. Mutitika vs Baharini Farm Ltd (1985)klr 227, where the court held; -“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.”
In this matter, I do find that the court issued an order restraining the petitioners from invading, trespassing, breaking and destroying the perimeter fence of the suit property. The said Order further directed the OCS Kiembeni to provide security to ensure that the Court's orders are obeyed. The OCS Kiembeni states that he was unable to enforce the order because the petitioners entered the suit property before the court order was made and therefore the OCS could not forcefully evict the parties. In these circumstances I cannot find that the OCS wilfully disobeyed the court order, however, I do order that the OCS to give the 1st respondent security to ensure that there is no further invasion of the property and construction of any structure by any person. I do urge parties to fast-track the suit for hearing. Costs in the cause.
The application is supported by the Affidavit of Yunus Haron who reiterates the grounds of the application. The applicant states in the grounds of the application that the property is and has always been vacant and that there was an order issued dated 12th March 2025 by the court stopping the Petitioners, agents, servants and/or employees from trespassing onto the land. That the Petitioners had largely obeyed the order until 23rd February 2026 when hearing of the case began. That after the first witness testified, it became apparent to the Petitioners that the suit was dead on arrival. This was confirmed when the second witness testified and was put to the sword. That immediately, unknown persons of the Petitioner started constructing small structures, creating roads and generally invaded the property with an aim and intention of deceiving this Court that they are occupying the property yet the Court had already visited and reported that the property is vacant as 23rd August 2024. That on the 24th of March 2026 an order was issued to compel the OCS Kiembeni Mr.Elvis Juma to provide security to ensure that the Order dated 12th March 2025 is obeyed. The order was served on the 27th of March 2026 and the entire chain of police command from the OCS Kiembeni to the Inspector General of Police. That no action was taken against the petitioners, agents, servants and/or employees while the Police silently stood watch on the trespass and invasion by the squatters and petitioners, despite reports being made to the Kiembeni Police Station, they still refused to provide security and obey the Court Order. That with the situation worsening, the 1st Respondent wrote a letter to the police hierarchy dated 10th April 2026 warning them of contempt proceedings but that too fell on deaf ears. That it is up to the court to protect its dignity.
The application is supported by the affidavit of Yunus Harun, the director of the 1st defendant. He states that there was an order issued dated 12th March 2025 by the court stopping the Petitioners agents, servants and/or employees from trespassing onto the land. The Petitioners had largely obeyed the order until 23rd February 2026 when hearing of the case began. That already the 1st Respondent has suffered losses and continues to suffer losses while they are obeying Court Order.
Mr Etore John Akaran filed a replying affidavit whose import is that one Yunus Haroon is not a Director of the 1st Respondent, Fort Properties Limited and has deliberately engaged in acts of perjury, and deponed to facts in a ploy to mislead the Honourable Court to presume that indeed the said affidavit was sworn by a member of the Board of the 1st Respondent.
He contends that the affidavit sworn on the 17th April 2026 contains falsified evidence on oath attracting the dismissal penalty, which then causes the effect that the application dated the 17th day of April 2026 cannot stand on its own and ought to suffer the consequence of being struck out with cost. That all consequent averments pertinent to the application especially of such serious nature of quasi environment in nature such as contempt that contain falsehoods cannot be utilized in applications of such nature. He further states that his Co-Petitioners /Respondents and himself are law abiding citizens of the Republic of Kenya have tremendous respect for the Honourable court and the Rule of law.
The Application dated the 17th day April 2026, and the affidavit therewith carry allegations, insinuations figment of imagination and or averment that all that property subject to this Petition has been invaded which is false similar to the perjury fronted by the Respondent the in Court proceedings and in documentation and pleadings before the Honourable Court. That to throw around heavy allegations against the Petitioners /Respondents insinuating an alleged invasion has the consequence of exerting pressure upon the Honourable court to convict the Co-Petitioners/Respondents. That a ground report in the premise of any investigations and 8th respondent clearly removes any guilt on the part of his Co-Petitioners/Respondents.
The sole objective is an eviction order which the Honourable Court cannot issue against persons who are unidentified as squatters these are not parties to the present suit, and are non-suited.
According to the respondents, the jurisdiction of contempt proceedings can only issue against individual who are parties to the present petition the information being peddled of placing blame on the Petitioners/Respondents and so as to get eviction orders is contrary to the rule of law, legitimate expectation and more importantly it is clearly trying to gain an upper hand in a matter pending judgment. That it is immediately upon the close of Petitioners /Respondent case that a flurry of applications in the nature and realm of contempt have been filed.
The petitioners state that there is no superiority contest before the Honourable court, the Petition before the Honourable court cannot be used as a settle-scores. The 8th Respondent/Respondent being a litigant in the present proceedings ought to be granted audience, the scenario of contempt flies straight as against the said Respondent who in fact ought to be investigated for falsehoods.
.
Yunis Harun filed a further affidavit stating that he is the Property Manager and they made several reports to the Police about the Invasion and that the officer had refused to take action and to vacate the invaders or forcible detention which is the crime committed and that at present there are only 6 structures on the premises and not hundreds as alleged. They only want protection from the invaders and that as long as the Police keep off they stand to lose.
According to the 1st respondent, no effort was communicated to the 1st respondent either verbally or officially of the construction despite their several visits and letters to the entire Police Administration. That no reason has been given for not obeying the Court Order to provide security. That the laxity and inaction of the OCS put the Court as inadequate and illegitimate because nothing has been averred to uphold the dignity of the Court.
The applicant states that the Affidavit demonstrates a defiant attitude by the Officer yet no action has been taken or even a Police report has not been indicated.
Elvis Juma OCS, Kiembeni Police Station and No. 23645 filed a replying affidavit stating that he is a Police Officer within the meaning of the National Police Service Act No IA of 2011 (revised 2012) Laws of Kenya and the office bearer of the 8th Respondent. 2. He states that he was posted at Kiembeni Police Station on 28.01.2025, There was a Court Order dated 12.03.2025, which order, granted injunction against the Petitioners, agents, servants, employees and/or constructors from invading, trespassing, constructing, breaking and destroying the perimeter wall and interfering with the peaceful enjoyment of the property pending hearing and determination of the Petition herein. The said order was obeyed until most recently, in or about the month o of February 2026. It is important for this Honourable Court to note that the said Order had no direct directions to his office to provide security at that time. The crux of the Application herein stems from an Order from this Honourable Court dated 24.03.2026 which was received in his office on 27.03.2026.
That the said Order granted an injunction against the Petitioners, restraining them from invading, trespassing, breaking and destroying the perimeter fence of the suit property. The said Order further directed his office to provide security to ensure that the Court's orders are obeyed.
That by the time the Order dated 24.03.2026 was served upon him, squatters had already invaded the suit land and constructed structures in it, The order dated 24.03.2026, requires his office to provide security to prevent trespassers, yet the trespassers were already in the suit property, way before the Order was issued.
To avoid stirring hostility from the already enraged squatters, his office sought for reinforcement to remove the squatters who were already dwelling in the suit property. The said squatters are in their hundreds thus overwhelmingly outnumbering officers under his command. The process of getting reinforcement is still underway.
That according to their records, the said squatters had encroached the suit property since February 2026, which is a month before the issuance of the Order dated 24.03-2026 by this Honourable Court. Unless an eviction order is now issued by this Honourable Court to evict the squatters who trespassed after February 2026, it would be difficult to effect the Order dated 24.03.2026.
That there is a man power challenge in the office since the squatters who invaded the suit property are large in number. There is dire need to seek a further order of reinforcement, especially at night, which is when the squatters tend to invade and trespass on the suit property. That in as much as the 1st Respondent has made complaints at the Police Station no arrests have been made as yet as the complainant and witnesses are yet to record their statement and investigations are still on going.
The prayers sought by the Applicant, and especially prayers 2 and 5 on the face of the Notice of Motion, are of serious nature, yet the Applicant has not demonstrated to this Honourable Court how he willfully failed, refused and or neglected to obey the Court Order dated 24.03.2026. As a matter of fact, it is the Petitioners who are in contempt as they are the ones who disobeyed the Honourable Court Orders. They proceeded to trespass onto the suit land deliberately knowing there exists an injunction order barring them from doing so.
He recommends that this Honourable Court gives direct orders of eviction and demolition of structures built by the squatters who invaded and constructed structures in or about February 2026 as they are the ones who disobeyed both Court orders dated 12,03.2025 and 24.03.2026. The petitioners argue that the Court Order dated 24.03.2026 was vaque and or ambiguous to the extent that the 8th Respondent could not enforce the Order. As stated in the 8th Respondent's sworn Affidavit dated 21.04.2026, there was a Court Order dated 12.03.2025, which order, granted injunction against the Petitioners, agents, servants, employees and/or constructors from invading, trespassing, constructing, breaking and destroying the perimeter wall and interfering with the peaceful enjoyment of the property pending hearing and determination of the Petition herein. The said order was obeyed until most recently, in or about the month of February 2026. The said Order had not directed the 8th Respondent to provide security at the time it was issued. Regarding the Order in question dated 24.03.2026, the same granted an injunction against the Petitioners, restraining them from invading, trespassing, breaking and destroying the perimeter fence of the suit property. Further, —there was a directive for the 8th Respondent to provide security to ensure that the Court's orders are obeyed.
The petitioners submit that the Court Order dated 24.03.2026 was served upon the 8 th respondent on 27.03.2026, as seen in the 8th Respondent's Replying Affidavit the said Order was served way after squatters/Petitioners had trespassed onto the suit land and built structures therein. Thus, while the Order specifically directed provision of security and not demolition of structures it would be impossible to effect the same since it is ambiguous. The police are a creature of command, acting on directives from statute or any authority, in this case a Court 0rder. Thus, that the 8th Respondent cannot formulate its own directive and act on it or enforce it.
The petitiners rely on the case of Katsuri Limited =VS= Kapurch and Depark Shah [2016)1 KEHC 6447 (KLR); where the Learned Judge opined as follows on clarity of Orders:-
“.. As pointed out earlier, in an application of this nature we are dealing with the liberty of a person and such an order ought to be granted in the dearest circumstances as evidently demonstrated by the authorities cited herein. In the instant application / am not satisfied that that standard of proof has been attained... "
From the foregoing petitioner submits that the Court Order dated 24.03.2026 is vague, ambiguous and may be interpreted to mean something other than what it was intended to mean. The petitioner submits that from the 8th Respondent's point of view, the Applicant expected the 8th Respondent to evict the squatters/Petitioners and demolish the structures on the suit property; whilst, the Court Order only meant provision of security of the suit property.
On whether the alleged contemnor willfully and in bad faith intentionally disobeyed the Court Order dated 24.03.2026, the petioner contends that Elvis Juma stated that the squatters had begun encroaching the suit property as from in or about February 2026, which was a month before the issuance of the Order dated 24.03.2026 by this Honourable Court. They were in large numbers and the manpower at the 8th Respondent's office is not sufficient to ward off the squatters/Petitioners who usually trespassed onto the suit property at night. The 8 th Respondent did not willfully refuse to obey the Court Order dated 24.03.2026. The 8th Respondent was acting in good faith and even went to the extent of obtaining reinforcement which is a process that usually takes time as the 8th Respondent follows —a chain of command. The 8 th Respondent serves the entire Kiembeni area, wherein the —suit property is situated. The petitioner submits that his action or inaction was in good faith for the benefit of the citizenry he is serving not just the Applicant.
The allegations of laxity, inaction or defiant attitude by the 8th Respondent, as contained in the Applicant's Further Affidavit dated 24.04.2026 are misleading as the annexures show the reports were made in the years 2024 and 2025. This was before issuance of the Court Order dated 24.03.2026 and that the complaints reported are still under active investigation. No arrests have been made as yet as the complainant and witnesses are yet to record their statements.
The petitioners refer to the case of Samuel M. N. Mweru & Others =Vs= National Land Commission & 2 Others [20201 KEHC 9233(KLR); where the Learned Judge stated as follows on the subject .
“38. The test for when disobedience of a civil order constitutes contempt has come
.to be stated as whether the breach was committed 'deliberately and mala fide. ' A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). 39. These requirements — that is the refusal to obey should be both wilful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt — accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court's dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent...”
Contempt proceedings are quasi-criminal in nature and carry the drastic consequence of imprisonment and fines. The Applicant must satisfy all the requisite elements and prove them beyond reasonable doubt, failure to which, the Application must be dismissed with costs.
I have considered the application, evidence and all submissions on record and do observe that it is trite that Courts punish for contempt to safeguard the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts: In the cases of Sheila Cassatt Issenberg & Another v Antony Machatha Kinyanjui [2021] eklr , the court cited with approval the decision of the Supreme Court of India in Mahinderjit Singh Bitta v Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011), where it was stated that:“In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the order of the court, even to constitute a civil contempt. Every party who before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.”
In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the court as follows:
“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.”
Moreover, in the above case of Samuel M. N. Mweru Case (Supra), the court set down the test for contempt as follows:
“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to proved;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 [47] 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; andd.The defendant's conduct was deliberate.”
In the case of Ochino & another v Okhombo & others (1989) KLR, the court held that as a general rule, no court order requiring a person to do or abstain from doing any act may be enforced by committing him for contempt, unless a copy of the order has been served personally on the person required to do or abstain from doing it.
Further, in the case of Duncan Mamel Murigi v Kenya Railway Corporation (2008) eKLR the court while citing the case of Re Bramblevale Ltd (1970) CH 128, held that contempt of court is an offense of a criminal nature, and that a man may be sent to prison for it once it is proved that when the man was asked about it, he told lies and that there should be further evidence to incriminate him.
Contempt of court being quasi- criminal proceedings, in nature, therefore the degree of proof is high. See the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & another C.A No. 24 of 2014, where the court held that a court must satisfy itself beyond any shadow of a doubt that the person alleged to be in contempt committed the acts complained of with full knowledge or notice of the existence of the order of the court, forbidding it since the threshold involves possible deprivation of a person’s liberty.
Given that contempt of court proceedings is quasi-criminal in nature, and that the liberty of the citees is at stake, then the degree of proof must be in the required standard. See the case of Gatharia K. Mutitika vs Baharini Farm Ltd (1985)klr 227, where the court held; -“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.”
In this matter, I do find that the court issued an order restraining the petitioners from invading, trespassing, breaking and destroying the perimeter fence of the suit property. The said Order further directed the OCS Kiembeni to provide security to ensure that the Court's orders are obeyed. The OCS Kiembeni states that he was unable to enforce the order because the petitioners entered the suit property before the court order was made and therefore the OCS could not forcefully evict the parties. In these circumstances I cannot find that the OCS wilfully disobeyed the court order, however, I do order that the OCS to give the 1st respondent security to ensure that there is no further invasion of the property and construction of any structure by any person. I do urge parties to fast-track the suit for hearing. Costs in the cause.