REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO. E015 OF 2024
GEORGE ONDONG'A APPELLANT/APPLICANT
VERSUS
NANCY KWAMBOKA ONKWANI RESPONDENT
IN THE MATTER OF AN APPLICATION FOR CONTEMPT OF COURT
BACKGROUND
1.The Appellant/Applicant, George Ondong’a, filed a Notice of Motion dated 6th October 2025 seeking orders to prosecute the Respondent, Nancy Kwamboka Onkwani, for contempt of court. The application is premised on the alleged failure of the Respondent to comply with the orders issued by this Honourable Court on 5th March 2025. The orders directed the Respondent to grant the Applicant communication access to the minor whenever the Applicant is in the United States and provide the Applicant with half-holiday custody of the minor during school holidays when the Applicant is in Kenya.
2. The Applicant contends that the Respondent has willfully disobeyed these orders, thereby acting in contempt of court. The Respondent, on the other hand, opposes the application, arguing that the Applicant has not provided evidence of her alleged non-compliance and that the application is baseless and without merit.
ISSUES FOR DETERMINATION
3. The following issues arise for determination:
1. Whether the Respondent knew of the court orders issued on 5th March 2025.
2. Whether the Respondent has willfully disobeyed the court orders.
3. Whether the Applicant has provided sufficient evidence to prove contempt of court.
4. Whether the orders sought by the Applicant should be granted.
ANALYSIS
Knowledge of the Court Orders
4. The Applicant asserts that the Respondent was aware of the court orders issued on 5th March 2025. However, the Respondent contends that she was not served with a copy of the judgment or decree and was absent when the judgment was delivered. The judgment indicates that there was no appearance for the respondent when it was delivered .
Contempt of court proceedings require proof that the alleged contemnor was aware of the terms of the court order. In the case of Samuel M.N. Mweru & Others v National Land Commission & 2 Others (2020), the court held that knowledge of the terms of the order is a critical ingredient in contempt proceedings.
The Applicant has not provided evidence to demonstrate that the Respondent was served with the judgment or decree. Without proof of service, it cannot be conclusively established that the Respondent was aware of the court orders.
Willful Disobedience of Court Orders
5. The Applicant alleges that the Respondent has willfully disobeyed the court orders by failing to grant communication access and half-holiday custody of the minor. The Respondent counters these allegations, stating that the Applicant has not contacted her to make arrangements for access to the minor.
The Respondent’s argument is supported by the principle that prior arrangements are necessary to execute court orders concerning custody and access. The Applicant has not provided evidence of attempts to contact the Respondent or make arrangements for access to the minor.
In the case of Gatharia K. Mutitika v Baharini Farm Ltd (1985), the court held that the standard of proof in contempt proceedings must be higher than the balance of probabilities, almost but not exactly beyond reasonable doubt. The Applicant has not met this standard of proof.
. Sufficiency of Evidence
6. The Applicant has attached copies of his passport to demonstrate his presence in Kenya during school holidays. However, this evidence does not establish that the Applicant contacted the Respondent or made arrangements for access to the minor.
The Respondent has consistently argued that she was not contacted by the Applicant or his representatives. The Applicant has not provided evidence to refute this claim.The court in Ann Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) held that the legal burden of proof lies upon the party who asserts the affirmative of the issue. The Applicant has failed to discharge this burden by providing concrete evidence of the Respondent’s alleged non-compliance.
Granting of Orders Sought
7. Given the lack of evidence to prove the Respondent’s awareness of the court orders and willful disobedience, the application does not meet the threshold for contempt of court proceedings. The court cannot grant the orders sought by the Applicant without sufficient evidence.
CONCLUSION
8. In light of the foregoing analysis, this Honourable Court finds that the Applicant has failed to prove the Respondent’s contempt of court. The application dated 6th October 2025 is hereby dismissed . Each party to bear his own costs.
T. A ODERA
JUDGE
6.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF CA – MR KIPCHIRCHIR FOR THE APPLICANT ……………………………….FOR THE RESPONDENT
DIRECTIONS : I note that the issue herein is communication between the parties . The parties are parents to the minor herein and they must talk in the best interest of the child. I direct parties to comply with the orders of this court dated 5.3.25 . The respondent indicated in her pleadings that she resides in Eldoret in Uasin Gishu county . The County Children Co-ordinator Uasin Gishu to file a report of accessibility of the child to the appellant as per the orders dated 5.3.25 . The report be filed within 21 days from today.
T.A ODERA
JUDGE
6.2.26
GEORGE ONDONG'A APPELLANT/APPLICANT
VERSUS
NANCY KWAMBOKA ONKWANI RESPONDENT
IN THE MATTER OF AN APPLICATION FOR CONTEMPT OF COURT
BACKGROUND
1.The Appellant/Applicant, George Ondong’a, filed a Notice of Motion dated 6th October 2025 seeking orders to prosecute the Respondent, Nancy Kwamboka Onkwani, for contempt of court. The application is premised on the alleged failure of the Respondent to comply with the orders issued by this Honourable Court on 5th March 2025. The orders directed the Respondent to grant the Applicant communication access to the minor whenever the Applicant is in the United States and provide the Applicant with half-holiday custody of the minor during school holidays when the Applicant is in Kenya.
2. The Applicant contends that the Respondent has willfully disobeyed these orders, thereby acting in contempt of court. The Respondent, on the other hand, opposes the application, arguing that the Applicant has not provided evidence of her alleged non-compliance and that the application is baseless and without merit.
ISSUES FOR DETERMINATION
3. The following issues arise for determination:
1. Whether the Respondent knew of the court orders issued on 5th March 2025.
2. Whether the Respondent has willfully disobeyed the court orders.
3. Whether the Applicant has provided sufficient evidence to prove contempt of court.
4. Whether the orders sought by the Applicant should be granted.
ANALYSIS
Knowledge of the Court Orders
4. The Applicant asserts that the Respondent was aware of the court orders issued on 5th March 2025. However, the Respondent contends that she was not served with a copy of the judgment or decree and was absent when the judgment was delivered. The judgment indicates that there was no appearance for the respondent when it was delivered .
Contempt of court proceedings require proof that the alleged contemnor was aware of the terms of the court order. In the case of Samuel M.N. Mweru & Others v National Land Commission & 2 Others (2020), the court held that knowledge of the terms of the order is a critical ingredient in contempt proceedings.
The Applicant has not provided evidence to demonstrate that the Respondent was served with the judgment or decree. Without proof of service, it cannot be conclusively established that the Respondent was aware of the court orders.
Willful Disobedience of Court Orders
5. The Applicant alleges that the Respondent has willfully disobeyed the court orders by failing to grant communication access and half-holiday custody of the minor. The Respondent counters these allegations, stating that the Applicant has not contacted her to make arrangements for access to the minor.
The Respondent’s argument is supported by the principle that prior arrangements are necessary to execute court orders concerning custody and access. The Applicant has not provided evidence of attempts to contact the Respondent or make arrangements for access to the minor.
In the case of Gatharia K. Mutitika v Baharini Farm Ltd (1985), the court held that the standard of proof in contempt proceedings must be higher than the balance of probabilities, almost but not exactly beyond reasonable doubt. The Applicant has not met this standard of proof.
. Sufficiency of Evidence
6. The Applicant has attached copies of his passport to demonstrate his presence in Kenya during school holidays. However, this evidence does not establish that the Applicant contacted the Respondent or made arrangements for access to the minor.
The Respondent has consistently argued that she was not contacted by the Applicant or his representatives. The Applicant has not provided evidence to refute this claim.The court in Ann Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) held that the legal burden of proof lies upon the party who asserts the affirmative of the issue. The Applicant has failed to discharge this burden by providing concrete evidence of the Respondent’s alleged non-compliance.
Granting of Orders Sought
7. Given the lack of evidence to prove the Respondent’s awareness of the court orders and willful disobedience, the application does not meet the threshold for contempt of court proceedings. The court cannot grant the orders sought by the Applicant without sufficient evidence.
CONCLUSION
8. In light of the foregoing analysis, this Honourable Court finds that the Applicant has failed to prove the Respondent’s contempt of court. The application dated 6th October 2025 is hereby dismissed . Each party to bear his own costs.
T. A ODERA
JUDGE
6.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF CA – MR KIPCHIRCHIR FOR THE APPLICANT ……………………………….FOR THE RESPONDENT
DIRECTIONS : I note that the issue herein is communication between the parties . The parties are parents to the minor herein and they must talk in the best interest of the child. I direct parties to comply with the orders of this court dated 5.3.25 . The respondent indicated in her pleadings that she resides in Eldoret in Uasin Gishu county . The County Children Co-ordinator Uasin Gishu to file a report of accessibility of the child to the appellant as per the orders dated 5.3.25 . The report be filed within 21 days from today.
T.A ODERA
JUDGE
6.2.26