1. Quickly, and at the very outset, may I say that many are the decisions on Contempt of Court proceedings and whereas I may not be able to sample all these historical decisions which offer the framework and act as a reset mechanism, I shall, before I dive into the factual matrix of the matter, drop anchor so that I do not lose my place, when I come back to the surface.
2. Citing one for contempt, is generally considered to be a writ of last resort and it is coercive in its function, rather than punitive. However, this does not mean that it is never done. It is available only where the person against whom it is sought to be issued is in contempt of court through having wilfully disobeyed its order. If the writ does issue, it temporarily places property of the contemnor into the hands of the sequestrators and denies him the right to enjoy or dispose of the property until a further order of the court. As the writ is very drastic in form, the courts have generally been reluctant to allow the writ to issue except in the clearest cases and will not normally issue the writ unless the conduct has been intentional or reckless. The conduct must be shown to be wilful. Consequently, the power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. It is also necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness. Emphasis supplied.
3. Before the court is a Notice of Motion dated 13th April, 2026 under sections 5 of the Judicature Act, Chapter 8, Laws of Kenya; Part 81 of the Civil Procedure (Amendment) Rules of England; Sections 3, 3A and 63 of the Civil Procedure Act, Laws of Kenya; Article 159(2)(d) of the Constitution of Kenya and other enabling provisions of the law and powers of the court; seeking five (5) major reliefs;
a. On the basis of the facts set out herein, the evidence and facts in support of the affidavit filed herewith, this Honourable court make a finding that Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, are in contempt of the Orders of this Court made on 17th March, 2026.
b. This Honourable court be pleased to issue such orders of sanction as it may deem under the applicable law against the Respondent Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) for contempt of court by their continued disobedience of the Court Orders made on 17th March, 2026 having them to inter-alia cooperate in having the rental proceeds collected on the Estate property, deposited into an Estate Account.
c. This Honourable court be pleased to issue such orders of sanction as it may deem under the applicable law against the Respondent Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) requiring them to forthwith cooperate in the deposit of proceeds collected from the Estate into the Estate Account.
d. In the alternative to prayer 3 above, this Honourable court be pleased to issue an Order sequestration for the real and personal property Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) for continued and willful disobedience of court Orders.
e. Until the Respondents/Contemnors purge their contempt, this honourable decline to hear any application filed by the Respondents.
4. The grounds are on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. Leah Wanjiru Waweru passed on and left her Estate comprising of the following properties; LR No. Dagoretti/Riruta/5368, LR No. Ruiru/Kiu Block 13/617 and Plot No. 581 Mwihoko Housing Company Limited.
b. Among the beneficiaries of LR No. Dagoretti/Riruta/5368 are; Raphael Karuga Gichuhi, Elizabeth Muthoni Kamau Daniel Waweru Gichuhi Salome Nyawira Kioi and Leah Wanjiru Waweru, Anne Nyambura Gichuhi and Felister Nyokabi Waweru.
c. The 1st and 2nd Respondents have been managing rental collection from LR No. Dagoretti/Riruta/5368, but their grant was revoked vide the orders of court issued on 17th March 2026 with directions from court that all rental income should be deposited in the Estate Account. Further all the administrators to avail statement of rent collection effective 17th March 2026 as evidenced by annexed court Order marked as FNW 3.
d. The applicant then caused a notice to be served upon the tenants to immediately deposit rent in the Estate Account. Additionally, a notice was issued to Bismark Property Management Limited to cease collecting rent from the property as evidenced by notices on FNW at page 2 to 4.
e. The Respondent’s Advocates vide a letter dated 31st March 2026 indicated that those units which were allegedly and built and owned by the respondents should be avoided like the plague despite the fact that those houses are on the deceased property and constitute part of the Estate properties. This letter is shown at page 5 of exhibit FNW 3.
f. It is the Administrator who has the authority to administer the estate of the deceased till it is distributed and transferred to the beneficiaries.
g. Even if the units were put up by the respondent on the deceased property, such an act amounts to intermeddling with the free estate of the deceased before the succession cause is completed.
h. The Respondents are by their action, prohibiting the applicant from collecting rent so that, in fullness of time, render a statement of rent collected and then distribute according to the Court Order on distribution of properties.
5. In response to the Notice of Motion dated 13th April, 2026 the 1st Respondent swore a replying affidavit and hereunder are the grounds of opposition;
a. There has existed a long-standing dispute between the parties concerning developments erected by various beneficiaries on LR No. Dagoretti/Riruta/5368, which dispute has been brought to the attention of the court in prior proceedings.
b. There is an application made to this Honourable court where it was averred that there are several permanent structures which have been erected by the beneficiaries even while the deceased was alive.
c. A careful review of the Order issued on 17th March, 2026 did not direct the Respondents to perform any specific act nor did it impose any obligation upon the Respondents personally.
d. Upon issuing the notices of the Order of court to deposit the rent collected into the Estate Account, the Respondents responded through a letter by their counsel dated 31st March 2026 that there exists rental units which belong to the deceased and separate rental units developed by beneficiaries using their own resources.
e. That the present dispute concerns interpretation, scope and implementation of the Orders of this honourable court as well as the competing claims regarding ownership and control of developments and not any deliberate refusal to obey court Orders.
Analysis and Determination:
6. There is only issue for determination; Are the Respondents in contempt of court order issued on 17th March, 2026 or not. To have a handle of the matter, I have sampled a survey of the passages and precedents that set the trajectory of an application of this nature. Additionally, I do reckon the fact, that contempt proceedings are quasi-criminal and the fact that withdrawal of one’s liberty is at stake, the standard of proof is higher than in civil cases and lower to the standard, in criminal cases.
7. Lord Denning in Re Bramblevale Ltd [1970] 1 CH 128 at page 137; “ A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.”
8. In the case of Heelmore VS Smith, (2)) 1886) L.R. 35 C.D455, Lord Bowen, L J aptly stated the rationale for punishing for contempt as: “ The object of the discipline enforced by the court in case of contempt of court is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with administration of justice.”
9. In Econet Wireless Kenya Ltd Vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, Ibrahim, J (as he then was) stated: “ 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, or in respect of whom, 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 void”.
10. In the case of Gatharia K. Mutikika Vs Baharini Farm Ltd {1985} KLR 227 , it was held; "The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... I must be higher than proof on a 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 offence, 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 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 judges 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. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... 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 a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestrati on, whether the offender is a party to the proceedings or not."
11. Intriguingly, the evidentiary material by way of affidavits leaves no doubt that the respondents were aware of the Court Orders issued on 17th March, 2026. They further said that since all parties knew that some structures were put personally on the subject matter, rental collection accruing from these “personal structures” did not form part of the Estate of the deceased. The applicant herein and deceased knew these structures belong to the respondents, though they stand on the deceased property. However, it must be observed, that compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. Failure to enforce court orders effectively has the potential to undermining confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.
12. In the English case by Romer, L J in Hadkinson Vs Hadkinson [1952] 2 ALL E.R 567, said; “ It is the plain and unqualified obligation of every person against, or in respect of, whom 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 regular or even void.”
13. The Court of Appeal in Refrigerator & Kitchen Utensils Ltd. Vs. Gulabchand Popatlal Shah & Others Civil Application No. Nai. 39 of 1990 succinctly put it in this way: “It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…"
14. Having set the law on contempt as it ought to be, the Respondent by law were supposed to approach court for interpretation, review or set it aside but not to select what to obey or to totally disobey court order. That is impunity.
15. Consequently, I make the following orders.
a. The Notice of Motion dated 16th April, 2026 is allowed.
b. That the Respondents to avail themselves before court on 17th September, 2026 at 830 in compliance of this ruling and show cause why they should not be committed to civil jail for contempt of Court Order dated 17th March, 2026.
c. Costs to borne by the Respondents.
Delivered virtually this 15th September, 2026 in the presence of Dr Kinyanjui for the Respondent and Mbogori for the Applicants.
2. Citing one for contempt, is generally considered to be a writ of last resort and it is coercive in its function, rather than punitive. However, this does not mean that it is never done. It is available only where the person against whom it is sought to be issued is in contempt of court through having wilfully disobeyed its order. If the writ does issue, it temporarily places property of the contemnor into the hands of the sequestrators and denies him the right to enjoy or dispose of the property until a further order of the court. As the writ is very drastic in form, the courts have generally been reluctant to allow the writ to issue except in the clearest cases and will not normally issue the writ unless the conduct has been intentional or reckless. The conduct must be shown to be wilful. Consequently, the power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. It is also necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness. Emphasis supplied.
3. Before the court is a Notice of Motion dated 13th April, 2026 under sections 5 of the Judicature Act, Chapter 8, Laws of Kenya; Part 81 of the Civil Procedure (Amendment) Rules of England; Sections 3, 3A and 63 of the Civil Procedure Act, Laws of Kenya; Article 159(2)(d) of the Constitution of Kenya and other enabling provisions of the law and powers of the court; seeking five (5) major reliefs;
a. On the basis of the facts set out herein, the evidence and facts in support of the affidavit filed herewith, this Honourable court make a finding that Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, are in contempt of the Orders of this Court made on 17th March, 2026.
b. This Honourable court be pleased to issue such orders of sanction as it may deem under the applicable law against the Respondent Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) for contempt of court by their continued disobedience of the Court Orders made on 17th March, 2026 having them to inter-alia cooperate in having the rental proceeds collected on the Estate property, deposited into an Estate Account.
c. This Honourable court be pleased to issue such orders of sanction as it may deem under the applicable law against the Respondent Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) requiring them to forthwith cooperate in the deposit of proceeds collected from the Estate into the Estate Account.
d. In the alternative to prayer 3 above, this Honourable court be pleased to issue an Order sequestration for the real and personal property Raphael Kiruga Gachui, Daniel Waweru Gichuhi and Elizabeth Muthoni Kamau, (Contemnors) for continued and willful disobedience of court Orders.
e. Until the Respondents/Contemnors purge their contempt, this honourable decline to hear any application filed by the Respondents.
4. The grounds are on the body of the application and can be gleaned from the supporting affidavit which I summarize as hereunder;
a. Leah Wanjiru Waweru passed on and left her Estate comprising of the following properties; LR No. Dagoretti/Riruta/5368, LR No. Ruiru/Kiu Block 13/617 and Plot No. 581 Mwihoko Housing Company Limited.
b. Among the beneficiaries of LR No. Dagoretti/Riruta/5368 are; Raphael Karuga Gichuhi, Elizabeth Muthoni Kamau Daniel Waweru Gichuhi Salome Nyawira Kioi and Leah Wanjiru Waweru, Anne Nyambura Gichuhi and Felister Nyokabi Waweru.
c. The 1st and 2nd Respondents have been managing rental collection from LR No. Dagoretti/Riruta/5368, but their grant was revoked vide the orders of court issued on 17th March 2026 with directions from court that all rental income should be deposited in the Estate Account. Further all the administrators to avail statement of rent collection effective 17th March 2026 as evidenced by annexed court Order marked as FNW 3.
d. The applicant then caused a notice to be served upon the tenants to immediately deposit rent in the Estate Account. Additionally, a notice was issued to Bismark Property Management Limited to cease collecting rent from the property as evidenced by notices on FNW at page 2 to 4.
e. The Respondent’s Advocates vide a letter dated 31st March 2026 indicated that those units which were allegedly and built and owned by the respondents should be avoided like the plague despite the fact that those houses are on the deceased property and constitute part of the Estate properties. This letter is shown at page 5 of exhibit FNW 3.
f. It is the Administrator who has the authority to administer the estate of the deceased till it is distributed and transferred to the beneficiaries.
g. Even if the units were put up by the respondent on the deceased property, such an act amounts to intermeddling with the free estate of the deceased before the succession cause is completed.
h. The Respondents are by their action, prohibiting the applicant from collecting rent so that, in fullness of time, render a statement of rent collected and then distribute according to the Court Order on distribution of properties.
5. In response to the Notice of Motion dated 13th April, 2026 the 1st Respondent swore a replying affidavit and hereunder are the grounds of opposition;
a. There has existed a long-standing dispute between the parties concerning developments erected by various beneficiaries on LR No. Dagoretti/Riruta/5368, which dispute has been brought to the attention of the court in prior proceedings.
b. There is an application made to this Honourable court where it was averred that there are several permanent structures which have been erected by the beneficiaries even while the deceased was alive.
c. A careful review of the Order issued on 17th March, 2026 did not direct the Respondents to perform any specific act nor did it impose any obligation upon the Respondents personally.
d. Upon issuing the notices of the Order of court to deposit the rent collected into the Estate Account, the Respondents responded through a letter by their counsel dated 31st March 2026 that there exists rental units which belong to the deceased and separate rental units developed by beneficiaries using their own resources.
e. That the present dispute concerns interpretation, scope and implementation of the Orders of this honourable court as well as the competing claims regarding ownership and control of developments and not any deliberate refusal to obey court Orders.
Analysis and Determination:
6. There is only issue for determination; Are the Respondents in contempt of court order issued on 17th March, 2026 or not. To have a handle of the matter, I have sampled a survey of the passages and precedents that set the trajectory of an application of this nature. Additionally, I do reckon the fact, that contempt proceedings are quasi-criminal and the fact that withdrawal of one’s liberty is at stake, the standard of proof is higher than in civil cases and lower to the standard, in criminal cases.
7. Lord Denning in Re Bramblevale Ltd [1970] 1 CH 128 at page 137; “ A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.”
8. In the case of Heelmore VS Smith, (2)) 1886) L.R. 35 C.D455, Lord Bowen, L J aptly stated the rationale for punishing for contempt as: “ The object of the discipline enforced by the court in case of contempt of court is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with administration of justice.”
9. In Econet Wireless Kenya Ltd Vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, Ibrahim, J (as he then was) stated: “ 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, or in respect of whom, 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 void”.
10. In the case of Gatharia K. Mutikika Vs Baharini Farm Ltd {1985} KLR 227 , it was held; "The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... I must be higher than proof on a 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 offence, 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 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 judges 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. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... 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 a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestrati on, whether the offender is a party to the proceedings or not."
11. Intriguingly, the evidentiary material by way of affidavits leaves no doubt that the respondents were aware of the Court Orders issued on 17th March, 2026. They further said that since all parties knew that some structures were put personally on the subject matter, rental collection accruing from these “personal structures” did not form part of the Estate of the deceased. The applicant herein and deceased knew these structures belong to the respondents, though they stand on the deceased property. However, it must be observed, that compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. Failure to enforce court orders effectively has the potential to undermining confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.
12. In the English case by Romer, L J in Hadkinson Vs Hadkinson [1952] 2 ALL E.R 567, said; “ It is the plain and unqualified obligation of every person against, or in respect of, whom 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 regular or even void.”
13. The Court of Appeal in Refrigerator & Kitchen Utensils Ltd. Vs. Gulabchand Popatlal Shah & Others Civil Application No. Nai. 39 of 1990 succinctly put it in this way: “It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…"
14. Having set the law on contempt as it ought to be, the Respondent by law were supposed to approach court for interpretation, review or set it aside but not to select what to obey or to totally disobey court order. That is impunity.
15. Consequently, I make the following orders.
a. The Notice of Motion dated 16th April, 2026 is allowed.
b. That the Respondents to avail themselves before court on 17th September, 2026 at 830 in compliance of this ruling and show cause why they should not be committed to civil jail for contempt of Court Order dated 17th March, 2026.
c. Costs to borne by the Respondents.
Delivered virtually this 15th September, 2026 in the presence of Dr Kinyanjui for the Respondent and Mbogori for the Applicants.