1. This ruling is in respect of 3 applications filed by the Plaintiff dated 28/3/2025, 15/4/25 and 30/4/2025. Notice of Motion dated 28th March 2025 seeks the following orders;
a) Spent.
b) Spent
c) THAT pending the hearing and determination of the suit, an interim injunction do issue to restrain the Defendant, by himself, representatives, agents, employees, servants, or whosoever acting on his behalf, from trespassing onto, converting, transferring. selling, alienating, letting, subdividing, charging or in any other manner whatsoever, interfering with the Plaintiffs' ownership, use, possession and occupation of the suit property, being the two parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/33
d) THAT the 1st interested Party to provide security, supervise and enforce the orders of this honourable court granted herein
2. A second Notice of Motion dated 15th APRIL 2025 seeks the following orders;
a) Spent
b) Spent
c) THAT pending the hearing and determination of the suit, an interim injunction do issue to restrain the Defendant, by himself, his representatives, his agents, or whosever acting on his behalf from carrying out any construction works on the suit properties, being the two parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/ 33, including but not limited to mobilization of any construction material or equipment or any earth-moving activities.
d) THAT an order do issue directed at the 1st interested Party to provide security, supervise and enforce the Orders of this honourable court granted herein.
e) THAT pending the hearing and determination of the suit, orders of restriction do issue restricting the 2nd interested party from altering the subsisting entries in the relevant land register regarding the suit property, being the two parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/ 33.
f) Costs of the Application be in the cause.
3. A 3rd Notice of Motion dated 30th April 2025 seeks the following orders.
a) Spent
b) THAT this Honourable Court be pleased to issue a notice to show cause to the Defendant/ Respondent to personally attend court and show cause as to why he should not be cited for contempt of the orders of this Honourable Court issued on April 28th 2025.
c) THAT this Honourable Court be pleased to cite the respondent for contempt of its Orders.
d) THAT this Honourable Court be pleased to commit the respondent to civil jail for six (6) months or such other period that the Court deems fit in the circumstances, until the contempt of court aforesaid is purged in full.
e) THAT the Defendant /Respondent be denied audience before this Honourable Court until such time as they shall have purged their contempt.
f) THAT the Defendant/ Respondent be required to immediately and in any case within two (2) days of the Orders of this Honourable Court to remove the fence that it has erected around the suit premises in contravention of the Orders of this Honourable Court.
g) THAT in the event that the Defendant/ Respondent does not remove the fence as required by the order sought in prayer f) herein, the Plaintiff/Applicant be allowed to remove the said fence by itself and the costs of such removal be chargeable to the Defendant/ Respondent.
h) THAT the Nairobi City County Police Commander be ordered to provide security and protection to the Plaintiff/ Applicant as it carries out the orders sought in prayer g) herein.
4. The three applications are supported by the affidavits of Francis Murai Michuki, sworn on 28th March 2025, 15th April 2025, and 25th April 2025.
5. A summary of the dispute herein is that it concerns a dispute over ownership, possession, and use of all those parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/33 (hereinafter “the suit property”).
6. The Plaintiff/Applicant avers that it is the lawful and registered proprietor of the suit property, having acquired a valid title thereto and having been in continuous, quiet possession since the year 2011. The Plaintiff further states that the titles were procedurally issued and subsequently converted under the prevailing land registration regime, and that the same are duly reflected in the Ardhi Sasa system.
7. The cause of action arises from alleged acts of trespass and attempted dispossession by the Defendant/Respondent. The Plaintiff states that on or about 26th March 2025, persons purporting to act under the authority of the Defendant, a County Government entity, unlawfully entered the suit property and attempted to assert control by placing a container bearing the insignia of the County Government. The said persons allegedly claimed that the suit property had been surrendered to the Defendant’s predecessor, a claim which the Plaintiff vehemently denies.
8. It is further averred that on 27th March 2025, construction materials were delivered onto the suit property and that the Defendant's agents have since proceeded to mobilise equipment and commence construction works, including excavation, laying of structures, and other activities which have materially altered and continue to alter the character of the suit property. The Plaintiff contends that such actions are unlawful, constitute trespass, and are aimed at dispossessing it of its proprietary interest.
9. The Plaintiff further states that attempts to seek police intervention have been unsuccessful, as the police have declined to act on the basis that the dispute involves a County Government.
10. Arising from the foregoing, the Plaintiff filed an Application dated 28th March 2025 seeking interim injunctive relief to restrain the Defendant from interfering with the suit property pending the hearing and determination of the Application and the suit. Subsequently, upon continued acts of construction and interference by the Defendant, the Plaintiff filed a further Application dated 15th April 2025 seeking additional injunctive orders specifically restraining ongoing construction works, as well as orders for restriction against dealings with the land register and enforcement measures through the relevant state agencies.
11. The Plaintiff asserts that interim orders were issued by this Honourable Court on 16th April 2025, restraining any construction on the suit property and that the said orders were duly served upon the Defendant on 17th April 2025. Notwithstanding service and knowledge of the orders, the Defendant is alleged to have continued with construction activities, including the destruction of crops and further development works, in blatant disregard and disobedience of the court’s orders. The Applicant claims that the Court issued clear, unambiguous, and binding Orders on April 28, 2025, requiring that parties maintain status quo in respect of the suit property, and the Respondent was fully aware of the said orders and the binding effect thereof as he was represented by Counsel in Court when the Orders were issued.
12. The Applicant swore that, despite such knowledge, the Defendant, with blatant impunity and disdain for the rule of law, has willfully and deliberately defied these lawful orders by entering the suit property, mobilising additional construction material and on the night of 29th April 2025, erected a semi-permanent fence along the entire perimeter of the suit property.
13. That the Defendant's conduct is contemptuous and amounts to a direct assault on the dignity and authority of this Court and must not go unpunished, and that the actions of the Defendant continue to occasion prejudice, loss, and irreparable damage to the Plaintiff.
14. The Plaintiff states that it is in the interest of justice that the Defendant be held accountable, and the status quo ante be restored under police supervision to avert further breaches of the Orders of this Honourable Court.
15. The Plaintiff claims that the Respondent, through its conduct of disobedience and defiance of the orders of this Court, have brought the Court into ridicule, odium and disrepute.
16. The Plaintiff maintains that it has not at any time surrendered the suit property and remains the lawful proprietor thereof. It relies on its title documents and official land records as prima facie evidence of ownership and invokes the protection of the right to property under Article 40 of the Constitution of Kenya, 2010.
17. The Plaintiff contends that unless the injunctive orders sought are granted and enforced, it stands to suffer irreparable loss and damage that cannot be adequately compensated by an award of damages, particularly given the ongoing alteration of the suit property and the risk of permanent dispossession.
18. The Applications are expressed to have been brought without undue delay, in good faith, and in furtherance of the interests of justice.
The Respondent's Replying Affidavit
19. The Respondents filed a Replying affidavit sworn by Cecilia Koigu, the Chief Officer, Lands of the Nairobi City County Government, stating that the suit parcels were originally excised from L.R. No. 3991 (Mika Estate) and are public land that was lawfully surrendered to the defunct City Council of Nairobi as a mandatory condition for subdivision approval in the early 1990s.
20. It is claimed that the surrender was explicit, unconditional, and for defined public purposes, namely the establishment of a health centre, commercial facilities, and public amenities, including a school and playground.
21. It is asserted that upon approval of the subdivision scheme in 1990 and the subsequent survey and planning approvals in 1992, the surrendered plots were later designated as L.R. Nos. 17665/1 and 17665/2 and vested in the City Council of Nairobi, now succeeded by the Nairobi City County Government.
22. The effect of that surrender, the Respondent contends, was to permanently extinguish all proprietary interests of the original landowners and their successors. Consequently, neither the Applicants nor any other private party could lawfully acquire any interest in the suit parcels thereafter.
23. The Respondent further maintains that the legal status of the suit properties as public land has never changed. Subsequent administrative actions, including minor boundary adjustments in 2010 and conversion under the Land (Conversion of Land) Rules, 2017, did not alter ownership or user but merely regularised acreage and registration formats. At all material times, the land remained reserved for public purposes, specifically, a health facility and commercial use in support of the local community.
24. Against this background, the Respondent challenges the Applicants’ alleged titles, said to have been acquired in or about 2011, as fundamentally defective. It is argued that such titles could not have been lawfully issued over land that had already vested in the public decades earlier.
25. In the Respondent’s view, any purported grants, leases, or registrations in favour of the Applicants were procured through a process that was irregular, unprocedural, and unlawful, and are therefore null and void ab initio. The Applicants’ attempt to rely on alternative parcel descriptions or block numbers is similarly dismissed as unsupported by any lawful conversion or allocation process.
26. The Respondent further contends that the Applicants’ claim amounts to an attempt to appropriate public land through the court process. The allegation of trespass is firmly rejected on the basis that the County Government, as the lawful custodian of the land, cannot trespass on its own property. On the contrary, it is the Applicants who are said to have unlawfully encroached upon the suit parcels, including erecting perimeter fencing with the apparent assistance of local security authorities.
27. The Respondent’s actions in 2024 and 2025 of re-entry onto the land, fencing, and the establishment of a temporary health facility are framed as lawful steps taken to reclaim and utilise public land for its intended purpose. Correspondence with the National Land Commission and security agencies is cited as further evidence of due process and institutional oversight in safeguarding the land for public use.
28. In sum, the Respondent’s position is that the suit parcels are, and have always been, public land held in trust for the people of Nairobi; that the Applicants have no lawful claim to them; and that any titles relied upon by the Applicants are legally indefensible. On that basis, the Respondent urges the Court to dismiss the Applications in their entirety and to discharge any interim orders that have the effect of perpetuating an unlawful occupation of public land.
The Respondent’s Grounds Of Objection
29. The Defendants filed grounds of objection to the application dated 30th April 2025, stating that in March 2025, the officials of the Nairobi City County Government accessed the suit parcels of land, placed construction materials and a container on the suit parcels of land and erected a semi-permanent perimeter wall around the suit parcels of land.
30. They claim that the status quo prevailing as at 28th April 2025, when the status quo orders were issued, was that there was a perimeter wall constructed around the suit parcels of land and construction materials and containers were on the land, and thus there was no contempt of Court committed.
31. The Respondents also claim that the order of 28th April 2025, the subject of the instant notice of motion, was not personally served upon the Respondent.
32. The Respondents further state that there is no evidence that the construction allegedly done on the night of 29th April 2025 was done by the Respondent or with their knowledge, consent and/or authority.
The Applicant's submissions
33. Counsel filed written submissions on the three applications stating that the Applicant’s case is anchored on its status as the registered proprietor of the suit properties, whose rights are protected under Article 40 of the Constitution and Sections 25 and 26 of the Land Registration Act. It is contended that the Applicant was in possession of the suit properties until March 2025, when the Respondent unlawfully invaded the same without any colour of right.
34. Counsel stated that the Respondent’s claim is based on an alleged surrender of the land in 1990; however, it has admitted that no formal process of surrender, conversion, or subdivision was ever undertaken. The Applicant has, on the other hand, demonstrated that the planning approvals were lawfully varied and culminated in the issuance of valid titles in its favour, thereby giving rise to a legitimate expectation that such approvals remain valid.
35. On whether the threshold for grant of interlocutory injunctions has been met, the Applicant relies on the principles in Giella v Cassman Brown (1937) EA 358 as affirmed in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (20030 KEECA 175 9KLR). It is submitted that the Applicant has established a prima facie case with a probability of success, as defined in the Mrao case, by demonstrating an apparent infringement of its proprietary rights. Further reliance is placed on Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another (2019) eKLR, where the court held that possession alone can establish a prima facie case, and on Wanjohi v Nganga & 2 Others (2025) KEELC 4434 (KLR), where the court affirmed the indefeasibility of title under Sections 25 and 26 of the Land Registration Act unless lawfully challenged.
36. The Applicant further submits that it stands to suffer irreparable loss incapable of compensation by damages, relying on Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others (2016) eKLR, which restates the principle in Halsbury’s Laws of England on irreparable harm. It is contended that the Respondent's actions, including the destruction of developments and ongoing construction, threaten to permanently alter the character of the suit properties. In support of this position, reliance is placed on Gatabaki & 2 others v Sanyi Jituan Sensen Investment Limited & 2 Others (2024) KEELC 779 (KLR) and Niaz Mohammed Janmohammed v Commissioner for Lands & 4 Others (19196) KLR, where the courts held that infringement of proprietary rights cannot be adequately compensated by damages.
37. On the balance of convenience, the Applicant submits that it tilts in its favour, as articulated in Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another (supra) and the persuasive authority of American Cyanamid Co v Ethicon Ltd, given that the Applicant was in possession prior to the unlawful invasion and stands to suffer greater prejudice if the injunction is denied. Further reliance is placed on Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd and Thompson v Park (19196) KECA 69 (KLR), for the proposition that a party cannot rely on an unlawfully created status quo to defeat injunctive relief.
38. With respect to the Application for contempt of court, the Applicant submits that there existed valid court orders, duly served upon and known to the Respondent, which restrained any interference with the suit properties. Notwithstanding such knowledge, the Respondent is alleged to have willfully breached the orders by undertaking construction works on April 29, 2025, and thereafter reinstating the same. The Applicant relies on Econet Wireless Kenya Ltd v Minister for Information & Communication & 2 others Nairobi Misc. Appl. 1640 of 2003, where the court emphasised that obedience of court orders is fundamental to the rule of law, and that deliberate disobedience must be met with firm sanction. Further reliance is placed on Gulabchand Popatlal Shah & Another v Investments & Mortgages Bank Ltd on the necessity of upholding the authority and dignity of the court.
39. In the premises, the Applicant urges this Honourable Court to find that it has satisfied the threshold for the grant of interlocutory reliefs, to allow the Applications for conservatory orders, and to cite and punish the Respondent for contempt so as to uphold the rule of law and preserve the substratum of the suit pending determination.
The Respondent’s submissions
40. The Defendant/Respondent opposes the Applications dated March 28, 2025, April 15, 2025, and April 30, 2025 on both procedural and substantive grounds, contending that the same are misconceived, incompetent, and devoid of merit. With respect to the Application for contempt, the Respondent avers that the status quo as at 28th April 2025, when the Court issued its orders, was that a perimeter wall had already been constructed around the suit property and construction materials, including a container, had already been placed thereon. It is therefore contended that no act complained of was undertaken in violation of the said orders, and that the Applicant is in effect seeking to alter, rather than preserve, the status quo.
41. The Respondent further submits that the orders allegedly disobeyed were not personally served upon the alleged contemnor, and in the absence of proper service and proof of knowledge, no finding of contempt can issue. In addition, it is contended that there is no evidence linking the Respondent or its agents to the alleged construction activities said to have taken place on April 29, 2025, and that the Application is speculative and intended to delay the proceedings, thus amounting to an abuse of the court process.
42. On the evidentiary issue, the Respondent challenges the admissibility of the further affidavits filed by the Applicant, arguing that the same were filed without leave of the Court contrary to Order 51 Rule 14(3) of the Civil Procedure Rules, and ought therefore to be disregarded.
43. On the Applications for interim injunction, the Respondent submits that the Applicant has failed to meet the threshold set out in Giella v Cassman Brown (supra) as restated in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (supra) and further elaborated in Nguruman Limited v Jan Bonde Nielsen & 2 Others (2014) eKLR, where the Court emphasised that the three conditions for the grant of an injunction are sequential and distinct.
44. On the issue of a prima facie case, the Respondent contends that the Applicant has not demonstrated any legally recognisable right over the suit property. It is submitted that the suit property constitutes public land which was surrendered to the defunct Nairobi City Council for public purposes and was never lawfully allocated to the Applicant. The Respondent relies on the statutory framework under Sections 9 and 12 of the Land Act and the Land (Conversion of Land) Rules and Regulations governing allocation and conversion of public land, arguing that the Applicant has not demonstrated compliance with the prescribed legal procedures. Consequently, any purported title held by the Applicant is alleged to be illegal, unprocedural, and incapable of protection under Article 40 of the Constitution, which only safeguards lawfully acquired property.
45. On irreparable harm, the Respondent relies on Nguruman Limited v Jan Bonde Nielsen & 2 others (supra) to submit that the Applicant has not demonstrated any injury that cannot be adequately compensated by damages. It is argued that the suit property was previously used as a coffee farm and any alleged loss, including destruction of crops, is quantifiable and compensable in monetary terms. Further, it is contended that the Applicant cannot suffer prejudice in respect of property in which it has no lawful interest.
46. On the balance of convenience, the Respondent relies on Pius Kipchirchir Kogo v Frank Kimeli Tenai (2028) Eklr to submit that the same tilts in its favour, as it holds the suit property for the benefit of the public and would be prejudiced if restrained from developing the same. It is argued that the Applicant stands to suffer no prejudice if the orders are declined, whereas the Respondent’s mandate over public land would be impeded.
47. With regard to the Application for contempt, the Respondent submits that the Applicant has failed to satisfy the legal threshold for contempt as set out in Katsuri Limited v Kapurchand Depar Shah and North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi (2016) eKLR, which requires proof of clear and unambiguous orders, knowledge thereof, breach, and deliberate conduct. It is contended that the Applicant has failed to exhibit the alleged order, failed to prove service or knowledge, and failed to demonstrate any willful disobedience by the Respondent.
48. Further, the Respondent argues that the Application is fundamentally defective as it seeks to cite the Governor, Nairobi City County, who holds a public office, and who cannot be personally committed to civil jail in the manner sought. In any event, the Respondent maintains that the acts complained of were undertaken prior to the issuance of the Court orders and that no deliberate breach has been established to the requisite standard of proof, which is higher than that in ordinary civil cases.
49. In conclusion, the Respondent submits that the Applicant has failed to establish a prima facie case, irreparable harm, or that the balance of convenience lies in its favour, and has further failed to meet the strict threshold required for a finding of contempt. The Respondent therefore urges this Honourable Court to dismiss all the Applications with costs.
Analysis and Determination
50. The Court has considered the three applications dated March 28, 2025, April 15, 2025, and April 30, 2025. The first two applications seek interlocutory injunctive relief pending the hearing and determination of the suit, and the court proposes to determine the two together. The third application seeks to cite the Defendant/Respondent for contempt of court orders issued on April 28, 2025.
51. The applications are opposed through a Replying Affidavit and Grounds of Opposition filed by the Defendant/Respondent. The Court considers the following to be the issues for determination.
A) Whether an order of Interlocutory Injunction should issue
52. The principles governing the grant of interlocutory injunctions are settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable harm not compensable by damages, and, where the court is in doubt, determine the matter on a balance of convenience.
53. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 defined a prima facie case as a case which, on the material presented before the court, shows an apparent infringement of a right requiring rebuttal from the opposite party.
54. The Applicant herein has exhibited Certificates of Lease from the Government of Kenya for respective terms of 99 years from 1st August 2011, for Nairobi Block 219/32 converted from L.R 17665/46 contained in grant No. 136807 and Nairobi Block 219/33 converted from L.R 17665/47 contained in grant No. 136806 issued in 2012. They have also exhibited deed plans for the said properties. The Applicant further exhibited recent searches that show that, at the time of filing this suit, the suit parcels of land were still registered in its name.
55. The Respondent, on the other hand, claims that in the early 1990s, the proprietors of L.R. No. 3991-Mika Estate applied for approval to subdivide the property into various plots. As part of the subdivision approval conditions imposed by the defunct City Council of Nairobi, certain plots were to be surrendered for public purposes. Specifically, subplot No. 221 was reserved for a health centre, subplot No. 222 for commercial use, and subplot No. 225 for a primary school, nursery school and playground. These public utility plots were identified in the subdivision plan and highlighted during the approval process.
56. The Respondent claims that following the approval process, subplot No. 221 was converted into L.R. No. 17665/1 while subplot No. 222 became L.R. No. 17665/2, collectively referred to as the suit properties. The Town Planning Committee approved the subdivision scheme at its meeting held on 6th December 1990 after confirming compliance with the stipulated conditions, and subdivision certificates were thereafter issued to facilitate the preparation of individual titles.
57. The Respondent further states that approved subdivision and survey plans dated 21st October 1992 confirmed the surrender of the suit properties to the defunct City Council of Nairobi for public purposes. Consequently, L.R. No. 17665/1 was reserved for the construction of a health centre, while L.R. No. 17665/2 was designated for commercial use for the benefit of the public. It is the Respondent's position that, upon approval of the subdivision and surrender plans, the suit properties became public land held in trust for the public first by the defunct City Council of Nairobi and subsequently by the Nairobi City County Government.
58. The position of the law concerning the two rival positions taken by the parties to this suit is that under Sections 24, 25 and 26 of the Land Registration Act, registration confers upon a proprietor prima facie ownership rights together with all privileges appurtenant thereto. The law further provides that a certificate of title is to be taken by courts as prima facie evidence that the person named therein is the absolute and indefeasible owner.
59. However, the position taken by the Respondent is supported by Section 26(1)(b) of the Land Registration Act, which permits impeachment of title where it is shown that the same was acquired illegally, unprocedurally or through a corrupt scheme. The Respondent’s contention is precisely that the suit property constituted public utility land reserved during subdivision and was therefore incapable of lawful alienation to a private individual.
60. The Supreme Court in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) reiterated that public land reserved for public purposes cannot be lawfully alienated and that a title founded on an illegality cannot enjoy constitutional protection under Article 40 of the Constitution.
61. Similarly, in Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR, the Court of Appeal held that where land was reserved for public purposes, any subsequent alienation contrary to the law was null and void.
62. Nevertheless, at this interlocutory stage, the Court is not called upon to make definitive findings on the legality or otherwise of the Applicant’s title. The issue whether the suit property was indeed surrendered for public utility and whether the title subsequently issued to the Applicant was lawful can only be conclusively determined upon full hearing and production of planning approvals, survey records, subdivision schemes, deed plans, surrender instruments and related documentation.
63. What is presently undisputed is that the Applicant holds a registered title and that the Respondent entered the property and assumed possession without first obtaining declaratory orders or cancellation of the title through a lawful process. In Republic v Land Registrar, Taita Taveta District & Another ex parte Krystalline Salt Limited [2015] eKLR, the Court emphasised that even where illegality is alleged, due process must be followed before depriving a registered proprietor of title or possession.
64. Indeed other issues that are reserved for determination at the trial is whether the parties are dealing with the same property since the Plaintiff refers to its properties as Nairobi Block 219/32 converted from L.R 17665/46 contained in grant No. 136807 and Nairobi Block 219/33 converted from L.R 17665/47 while the Defendant refers to its property as subplot No. 221 reserved for a health centre, subplot No. 222 for commercial use, and subplot No. 225 for a primary school, nursery school and playground. The Defendants claim that subplot No. 221 was converted into L.R. No. 17665/1 while subplot No. 222 became L.R. No. 17665/2.
65. In the Court’s view, taking into account the evidence now on record, the Applicant has established a prima facie case with a probability of success sufficient for purposes of interlocutory relief.
66. On irreparable injury, the Respondent has already taken possession of the suit property, fenced it and erected structures thereon. In the Court’s view, continued occupation and further development may alter the character and substratum of the suit property before the legality of the competing claims is determined. Land is unique, and no two parcels are exactly alike. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal observed that where the subject matter is land, damages may not always.
67. The Court further relies on the Court of Appeal decision in Kamau Mucuha Versus The Ripples Ltd Nairobi CA 186/1992 (Nai 77/92 UR) when determining the fallacy of letting a party remain on property where he entered disturbing the status quo stating that;
“The point is neatly illustrated by the decision of Goddard LJ in Thompson v. Park [1944] 2 All ER 477 in which the question arose as to which of two rival prep schools should occupy the premises which belonged to the defendant but which had been demised to the plaintiff. The Court of Appeal held that it is fallacious for a person who forcibly and riotously enters premises to maintain that his occupation of these premises is the status quo which must be maintained, and not disturbed, which of course in very many cases is the object of a temporary injunction – to keep things in staus quo so that the property in question is maintained, as far as possible, intact until the final determination of the suit. Goddard, LJ held in Thompson v. Park that the status quo was not that which existed after the intruder’s illegal acts, but that which existed beforehand. be an adequate remedy.”
68. As regards the balance of convenience, the Court must weigh the Applicant’s proprietary interest against the Respondent’s assertion of public interest. While public interest is an important consideration, the Court must equally guard against unlawful deprivation of property without due process. Preservation of the suit property pending trial would best serve the interests of justice.
69. Accordingly, the Court is satisfied that the Applicant has met the threshold for the grant of an interlocutory injunction.
B. Whether the Respondent is in Contempt of Court
70. The term “contempt” of court has been defined as a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behaviour or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.
71. In the case of Hadkinson -V- Hadkinson (1952) 2 All ER. 567, it was held that:
"It is plain and unqualified obligation of every person against or in respect of who an order is made by a 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 even void." (Also see the case of Katsuri Limited Vs Paurchand Depar Shah (2016) eKLR).
72. The power to punish for contempt of Court is provided for under Section 5 of the Judicature Act, Chapter 8 of the Laws of Kenya. Several other legislations provide for the power to punish for contempt of Court. This court is given power to punish for the offence of contempt of Court under Section 29 of the Environment and Land Court Act, which stipulates:
“....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.”
73. Order 40 rule 3 of the Civil Procedure Rules provides for the consequences of breach of an order of injunction and states:
“In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release”.
74. Dealing with the question of contempt in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J. (as he then was), underscored the importance of obeying court orders, stating:
“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 whom an order is made by a court of competent jurisdiction to obey it unless and until the 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 the order believes it to be irregular or void.”
75. The law on contempt requires proof of the elements set out in Katsuri Limited v Kapurchand Depar Shah 2016 eklr The applicant must prove to the required standard (in civil contempt cases which is higher than in criminal cases) that the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant, the defendant had knowledge of or proper notice of the terms of the order, the defendant has acted in breach of the terms of the order; and finally the defendant's conduct was deliberate.
76. The standard of proof is higher than in ordinary civil cases. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, that:
"A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond a reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature."
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.”
77. The Applicant in this case has demonstrated that orders were issued on April 28, 2025 and that the Respondent was represented in Court on that date. Knowledge of the order can therefore be inferred.
78. However, the Respondent contends that the perimeter wall complained of was constructed in March 2025, prior to the issuance of the orders and denies involvement in the alleged activities of April 29, 2025.
79. Contempt proceedings, being quasi-criminal in nature, require strict proof. The Court must be satisfied that the acts complained of were undertaken after the order and were deliberate. In the present case, the Court is not clear whether the perimeter wall constructed by the Respondent was constructed after issuance of the orders of the Court. The Court is thus not satisfied that contempt of Court has been proved to the standard required by the law.
Final Order
80. In disposition of the applications before this court dated 28th March 2025, 15th April 2025 and 30th April 2025, the Court makes the following orders;
1. The applications dated 28th March 2025 and 15th April 2025 are allowed in the following terms;
a) Pending the hearing and determination of this suit, an interim injunction is hereby issued restraining the Defendant, by itself, representatives, agents, employees, servants, or whosoever acting on its behalf, from remaining, trespassing onto, converting, transferring. selling, alienating, letting, subdividing, charging or in any other manner whatsoever, interfering with the Plaintiffs' ownership, use, possession and occupation of the suit property, being the two parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/33
b) Pending the hearing and determination of this suit, an interim injunction is hereby issued restraining the Defendant, by itself, it’s representatives, agents, or whosever acting on its behalf from carrying out any construction works on the suit properties including mobilization of any construction material or equipment or any earth-moving activities on the suit parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/33.
c) THAT an order is hereby issued directed at the 1st interested Party to provide security, supervise and enforce the orders of this court.
d) THAT pending the hearing and determination of this suit, orders of restriction do issue restricting the 2nd interested party from altering the subsisting entries in the relevant land register regarding the suit property, being the two parcels of land known as Nairobi Block 219/32 and Nairobi Block 219/33.
2. The application dated 30th April 2025 seeking committal for contempt of Court is dismissed.
3. Hearing and determination of this suit be expedited.
4. Costs of the three applications shall be in the cause.
Delivered, dated and signed via Microsoft Teams this 14th day of May 2026.
HON. L. G. KIMANI
JUDGE ENVIRONMENT AND LAND COURT
The Ruling read in the presence of-
Ngatia for the Plaintiff/Applicant.
M/S Gathiru holding brief for Kamotho for the Respondent.
| RULING MILIMANI E141 OF 20255 of 27 |