This ruling is in respect of two applications namely; the Notice of Motion dated 23/7/2025 by the defendants and Notice of Motion dated 29/9/2025 by the Plaintiff.
In the application dated 23/7/2025 the defendants seek for orders that they be allowed to harvest maize on the suit land which was ready for harvesting. The application is based on the grounds that prior to the suit, the defendants had cultivated the suit land and planted maize. That an order of temporary injunction was issued herein restraining them from entering the suit land. That they were likely to suffer immensely if they are not allowed to access the land to harvest the maize.
The application was opposed vide the Replying Affidavit sworn by the plaintiff on 28/9/2025 that there is no material change on the surface of the record to warrant the court to review, vary, adjust and give the orders prayed for in the application dated 23/7/2025.
That the defendants are inviting the court to sit on appeal of its own decision which will amount to injustice .
That the Application had been overtaken by events as the defendants had already harvested the maize and rendered the application nugatory.
The Notice of Motion dated 29/9/2025 seeks for orders that;
a) The respondents be cited for contempt of court for disobeying the court order issued on 10th July, 2025.
b) The Respondents be ordered to show cause why they should not be committed to civil jail for flagrant disobedience of court orders.
c) That the Officer Commanding Station Miwani Police Station be directed to enforce compliance of the orders.
d) Costs of the application be provided for.
The grounds upon which the application was brought were that the court issued an order of temporary injunction on 10/7/2025 which order was served upon the Respondents who have always been aware of the court order.
That the respondents, despite being duly served with the order, are still trespassing and interfering with status of the suit land and issuing verbal threats to the Applicant. That on 27/8/2025 the respondents entered the suit land and harvested maize.
That the respondents’ actions amount to disrespect and disobedience of the court order hence undermining the dignity and authority of the court.
The application was supported by the averments in the Supporting Affidavit sworn by the Applicant on 29/9/2025 and the annextures thereto.
The application was opposed vide the Replying Affidavit sworn by the 1st Defendant on 13/10/2025.
The defendant’s case was that as at the date the order was issued it was the Defendants who were in possession of the land. They had harvested the beans and the maize was ready for harvest. That they have never gone back to the suit land since the date of the court ruling but that they are aware that their maize was stolen by people known to the Plaintiff. That the maize was planted by them.
The applications were heard by way of written submissions.
On behalf of the Plaintiff written submissions dated 27/10/2025 were filed in respect of the application dated 29/9/2025 and further submissions dated 17/11/2025.
On behalf of the Defendants written submissions dated 29/10/2025 were filed.
I have considered the submissions.
The defendants’ application dated 23/7/2025 has been over taken by events as all parties are in agreement that the maize the subject matter thereof is no longer on the farm.
Regarding the plaintiff’s application seeking to cite the defendants for contempt of court, the standard of proof for contempt cases is above the ordinary standard of proof on a balance of probabilities in civil cases. In Mutitika vs Baharini Farm Limited [1985] KLR 227, it was held that “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 reasonable doubt….the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…”
The defendants have denied harvesting the maize. They claim that it is either the plaintiff or persons known to the plaintiff who harvested the maize if the same have been harvested. They stated that they have not been to the suit land since the orders were issued.
The burden of proof was on the plaintiff to demonstrate the elements of contempt of court to the required standard of proof. In Johari School Limited -vs- Rosemary Wamburu t/a Johari School [2021] eKLR the elements of contempt of court were stated to be;
(a) the existence of valid court order whose terms are clear and unambiguous and binding on the respondent.
(b) proof that the respondent had knowledge or proper notice of the terms of the order.
(c) proof that the respondent acted in breach of the terms of the order; and
(d) that the conduct or action of the respondent was deliberate or willful.
While the plaintiff has demonstrated the existence of a valid court order that was binding on the defendants and that the defendants were aware of the court order, I find no evidence that it was the defendants who entered the suit land and harvested the maize. It was incumbent upon the applicant to prove that the defendants willfully or deliberately breached the court order. This has not been done.
The court finds that the application lacks merit.
Both applications are hereby dismissed.
Costs to abide the suit.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered virtually this 29th day of January, 2026.
E. ASATI,
JUDGE.
In the presence of:-
Maureen - Court Assistant
Wesonga - for the Plaintiff
Orengo - for the Defendants.
| ELCLC CASE NO. E034/2025 RULING Page 2 |