1. By an application dated 24th March 2026 made under Order 42 Rules 3 (1) of the Civil Procedure Rules, Order 51 Rule (1) and Section 3, 3A and 63 € of the Civil Procedure Act, the Applicants pray that the Respondent do show cause why he should not be detained in civil jail for a period of six (6) months for blatantly disobeying the court order issued on 12th November 2025.
2. The application is based on the grounds on the face of it and the affidavit sworn by the 3rd Applicant on the same date.
3. The brief history of the matter is that on 12th November 2025, the Court issued the following orders:-
1. THAT a preservatory order is hereby issued restraining the Respondents, their agents, servants, or assigns from ploughing, cultivating, leasing, disposing of, or otherwise intermeddling with L.R. No. Kakamega/Lumakanda/270, pending the hearing and determination of the petition for the grant of probate and final distribution of the estate.
2. THAT the status quo as it existed at the time of the deceased’s death on 23rd February 2024 be maintained.
4. The deponent averred that she was aware that the Respondent was duly served with the court order but despite knowledge of the preservatory orders, he has defied the same and entered the suit land and continued ploughing the same and cutting down trees contrary to the order.
5. The Applicants aver that since the Respondent is deliberately acting with impunity in flouting the court order with insinuations that court orders are useless or hopeless, it is in the interest of justice that he be served with Notice to show cause why he should not be committed to civil jail.
6. The Respondent opposed the application through an affidavit sworn on 21/4/2026. He deponed that he had never been served with the court order dated 12th November 2025 or the earlier one. He averred that he had never ben served with any documents and hearing notices to attend court for any hearing of any application and was not aware of the court order. He urged the court to dismiss the application.
7. The Applicants filed a further affidavit, with leave of the court, in rejoinder to the Respondent’s response. The 3rd Applicant deponed that the Respondent was aware of the application for preservatory orders as he was served with the same after which he appointed the firm of M/s. Emmanuel Kipkirui Advocates, who entered appearance on his behalf.
8. According to the 3rd Applicant, the Respondent was aware of the existence of the orders dated 31st October 2025 having participated in the cause through his Counsel.
9. The 3rd Applicant further averred that the Respondent was not a beneficiary of the estate of the deceased and was in defiance of a court order whose existence he had knowledge of.
10. The application was canvassed through written submissions.
11. I have carefully considered the application, the replying affidavit and the parties’ written submissions. The issues for determination arising from the application are:-
(a) Whether the Respondent was aware of the court order.
(b) Whether the Applicants have proved the element of contempt to the required standard.
(c) Whether Notice to Show Cause should issue.
12. There is no dispute that the court in its ruling dated 31st October 2025 allowed the Applicants’ prayer and issued preservatory orders over L.R. No. Kakamega/Lumakanda/270 as earlier set out.
13. The Applicants submit that the Respondent was aware of the order an is in willful disobedience thereof and should be punished for contempt.
14. I have perused the Applicant’s two affidavits and find no affidavit of service to prove that the order was ever served upon the Respondent. Whereas the ruling was supposed to be delivered on 26/6/2025, the Court did not sit on that date and the ruling was delivered on 31/10/2025 in the absence of both parties. It is therefore doubtful, in the absence of an affidavit of service, whether the order was ever extracted and served upon the Respondent.
15. I am mindful of the holding in Shimmers Plaza Limited v. National Bank of Kenya Ltd [2015] KECA 945 (KLR) that a party cannot use non-service of a formal order as a shield, but that is only applicable where a party is shown to have been aware of the order. In the said case, the Court of Appeal held that:-
“On the other hand however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under 81.8 (1) (supra).
Kenya's growing jurisprudence right from the High court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings. For instance, Lenaola J in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR pronounced himself as follows:-
“...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary”.”
16. In the present cares, the Applicants did not adduce material evidence to prove that the Respondent was aware of the court order or indeed the ruling delivered on 31st October 2026.
17. Without proof of knowledge of existence of an order, one cannot be said to have willfully or deliberately flouted the order. In Directline Assurance Co. Ltd v. Jamii Bora Bank Ltd & 5 others [2015] eKLR, the Court held that inadvertent , accidental or unintentional non-compliance of a court order does not amount to contempt.
18. The standard of proof in contempt proceedings is higher than the standard in ordinary civil proceedings. Since contempt of court is a quasi-criminal offence, the standard of proof is very high. In Mutitika v. Baharini Farm Ltd [1985] KLR 227, the Court of Appeal emphasized that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities but not exactly beyond reasonable doubt.
19. From the affidavits of service produced in support of the application, the Respondent can be conclusively said to have been aware of the initial application and the temporary order issued in respect thereof. There is no evidence whatsoever that the Respondent or his Counsel ever came to the knowledge of the ruling dated 31st October 2025 or any subsequent order issued thereafter. In the premises, any disobedience of the order is inadvertent.
20. Be that as it may, having been served with the present application, I hold that the Respondent now has formal notice of the order and that he is under obligation to obey the same immediately as he remains an intermeddler in the estate of the deceased, or to face the legal consequences of disobedience.
21. From the foregoing, I am not satisfied that the Applicants discharged the burden of proof to the required standard. The application therefore lacks merit and is hereby dismissed with no order as to costs as the Respondent is an intermeddler.
2. The application is based on the grounds on the face of it and the affidavit sworn by the 3rd Applicant on the same date.
3. The brief history of the matter is that on 12th November 2025, the Court issued the following orders:-
1. THAT a preservatory order is hereby issued restraining the Respondents, their agents, servants, or assigns from ploughing, cultivating, leasing, disposing of, or otherwise intermeddling with L.R. No. Kakamega/Lumakanda/270, pending the hearing and determination of the petition for the grant of probate and final distribution of the estate.
2. THAT the status quo as it existed at the time of the deceased’s death on 23rd February 2024 be maintained.
4. The deponent averred that she was aware that the Respondent was duly served with the court order but despite knowledge of the preservatory orders, he has defied the same and entered the suit land and continued ploughing the same and cutting down trees contrary to the order.
5. The Applicants aver that since the Respondent is deliberately acting with impunity in flouting the court order with insinuations that court orders are useless or hopeless, it is in the interest of justice that he be served with Notice to show cause why he should not be committed to civil jail.
6. The Respondent opposed the application through an affidavit sworn on 21/4/2026. He deponed that he had never been served with the court order dated 12th November 2025 or the earlier one. He averred that he had never ben served with any documents and hearing notices to attend court for any hearing of any application and was not aware of the court order. He urged the court to dismiss the application.
7. The Applicants filed a further affidavit, with leave of the court, in rejoinder to the Respondent’s response. The 3rd Applicant deponed that the Respondent was aware of the application for preservatory orders as he was served with the same after which he appointed the firm of M/s. Emmanuel Kipkirui Advocates, who entered appearance on his behalf.
8. According to the 3rd Applicant, the Respondent was aware of the existence of the orders dated 31st October 2025 having participated in the cause through his Counsel.
9. The 3rd Applicant further averred that the Respondent was not a beneficiary of the estate of the deceased and was in defiance of a court order whose existence he had knowledge of.
10. The application was canvassed through written submissions.
11. I have carefully considered the application, the replying affidavit and the parties’ written submissions. The issues for determination arising from the application are:-
(a) Whether the Respondent was aware of the court order.
(b) Whether the Applicants have proved the element of contempt to the required standard.
(c) Whether Notice to Show Cause should issue.
12. There is no dispute that the court in its ruling dated 31st October 2025 allowed the Applicants’ prayer and issued preservatory orders over L.R. No. Kakamega/Lumakanda/270 as earlier set out.
13. The Applicants submit that the Respondent was aware of the order an is in willful disobedience thereof and should be punished for contempt.
14. I have perused the Applicant’s two affidavits and find no affidavit of service to prove that the order was ever served upon the Respondent. Whereas the ruling was supposed to be delivered on 26/6/2025, the Court did not sit on that date and the ruling was delivered on 31/10/2025 in the absence of both parties. It is therefore doubtful, in the absence of an affidavit of service, whether the order was ever extracted and served upon the Respondent.
15. I am mindful of the holding in Shimmers Plaza Limited v. National Bank of Kenya Ltd [2015] KECA 945 (KLR) that a party cannot use non-service of a formal order as a shield, but that is only applicable where a party is shown to have been aware of the order. In the said case, the Court of Appeal held that:-
“On the other hand however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under 81.8 (1) (supra).
Kenya's growing jurisprudence right from the High court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings. For instance, Lenaola J in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR pronounced himself as follows:-
“...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary”.”
16. In the present cares, the Applicants did not adduce material evidence to prove that the Respondent was aware of the court order or indeed the ruling delivered on 31st October 2026.
17. Without proof of knowledge of existence of an order, one cannot be said to have willfully or deliberately flouted the order. In Directline Assurance Co. Ltd v. Jamii Bora Bank Ltd & 5 others [2015] eKLR, the Court held that inadvertent , accidental or unintentional non-compliance of a court order does not amount to contempt.
18. The standard of proof in contempt proceedings is higher than the standard in ordinary civil proceedings. Since contempt of court is a quasi-criminal offence, the standard of proof is very high. In Mutitika v. Baharini Farm Ltd [1985] KLR 227, the Court of Appeal emphasized that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities but not exactly beyond reasonable doubt.
19. From the affidavits of service produced in support of the application, the Respondent can be conclusively said to have been aware of the initial application and the temporary order issued in respect thereof. There is no evidence whatsoever that the Respondent or his Counsel ever came to the knowledge of the ruling dated 31st October 2025 or any subsequent order issued thereafter. In the premises, any disobedience of the order is inadvertent.
20. Be that as it may, having been served with the present application, I hold that the Respondent now has formal notice of the order and that he is under obligation to obey the same immediately as he remains an intermeddler in the estate of the deceased, or to face the legal consequences of disobedience.
21. From the foregoing, I am not satisfied that the Applicants discharged the burden of proof to the required standard. The application therefore lacks merit and is hereby dismissed with no order as to costs as the Respondent is an intermeddler.